Is This Seat Taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution

Stu Woolman, David Bilchitz

Description

Now that economic development is starting to pick up in many countries in Africa, the question arises how such development can be balanced with the need for adequate environmental protection. This crucial issue, inherent in the notion of sustainable development, is addressed in this innovative and path-breaking volume. For the first time, academics from seventeen African countries have joined forces to analyse the way in which economic and environmental interests are balanced in their legal systems. The authors all use a common framework to improve the comparability of the country studies. The different country-related chapters do not only provide insights into the formally applicable legal rules (law in the books)., but given that the book brings together academics aware of the practice in Africa, they also describe the way in which environmental policy functions in practice (law in action). Many case studies, with conceptual analyses are provided of pollution incidents and the way in which administrative agencies or courts have on those occasions balanced the interests between the economy, society and the environment. A critical comparative analysis by the editors points at tendencies towards convergence and points of divergence between the African countries. Suggestions for policy reform are also formulated, showing African countries how they can benefit from experiences in the US and Europe.This thought provoking volume is a must for anyone (academic, policymaker or practitioner) interested in sustainable development generally and in Africa in particular.About the editors:Stu Woolman is the Academic Director at the South Africa Institute for Advanced Constitutional, Public, Human Rights and International Law.David Bilchitz is Professor at the University of Johannesburg and Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC).

Sujets

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

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2012
• Nombre de lectures: 0
• EAN13: 9780920538071
• Langue: English
• Poids de l'ouvrage: 3 Mo

Extrait

Is This Seat Taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution

Stu Woolman & David Bilchitz (eds)

2012

Is this Seat Taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution

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. 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. This book was peer reviewed prior to publication.

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

ISBN: 978-0-920538-07-1

© 2012

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TABLE OF CONTENTS

PREFACE

Rationality is dead! Long live rationality! Saving rational basis review Michael Bishop

The content and justification of rationality review Alistair Price

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Taking diversity seriously: Religious associations and 75 work-related discrimination Patrick Lenta

On the fragility of associational life: 111 A constitutive liberal’s response to Patrick Lenta Stu Woolman

Migration, street democracy and expatriate voting rights Wessel le Roux

Constitutional patriotism or constitutional nationalism? A response to Wessel le Roux Karin van Marle

Does transformative constitutionalism require the recognition of animal rights? David Bilchitz

Animal rights and the interpretation of the South African Constitution Thaddeus Metz

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221 Is there a difference that makes a difference between ubuntuand dignity? Drucilla Cornell

Where dignity ends andubuntubegins: An 241 amplification of, as well as an identification of a tension in, Drucilla Cornell’s thoughts Yvonne Mokgoro and Stu Woolman

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Balancing and the limitation of rights in the South African Constitution Iain Currie

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Does balancing adequately capture the nature of 267 rights? David Bilchitz

Towards a framework for understanding constitutional deference Kirsty Mclean

Reclaiming the frontier of constitutional deference:Mazibuko v City of Johannesburg– a jurisprudential setback Redson Edward Kapindu

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341 On the common saying ‘what’s true in golf is true in law’: The relationship between theory and practice across forms of life Stu Woolman

Theory, practice and the legal enterprise David Bilchitz and Juha Tuovinen

Between charity and clarity: Kibitzing with Frank Michelman on how to best read the Constitutional Court Stu Woolman

Old Kibitzes never die: A rejoinder to Stu Woolman Frank I Michelman

Judicious transparency Jonathan Klaaren

In search of a theory of judicious (judicial) transparency: A response to Klaaren Richard Calland and Chris Oxtoby

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PREFACE

We do things differently around here. (Or rather, we like to think we do.) Throughout the year, we have jurists and academics (local and foreign), graduate students and school learners, arrive at our offices on Constitution Hill to present papers that either make us squirm in our seats or think of ostensibly mundane matters afresh. Often enough, our guests deliver presentations on topics we have yet to consider and are, therefore, new to the South African legal landscape. The creation of a safe space to push the boundaries of legal thought remains theraison d’êtrefor the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC).

One of the ways that we do things differently is to replace static presentations with vibrant conversations. Throughout our colloquia and seminars, as well as in other publications (fromConstitutional Conversations to theConstitutional Court Review), we have employed a dialogical model of presentation. Instead of having individual judges, academics and students present alone, we opt for formats that place individuals in conversation with one another – in a manner that is rigorous yet collaborative, spirited rather than competitive.

One new result of this methodology is this book. The colloquies that make up this work are framed in a manner that requires interlocutors to speak directly to, and not past, one another. Professor Frank Michelman of Harvard Law School (one of the authors in this volume) neatly captures the colloquium’s ethos: ‘The aim is to learn. It is aggressively to learn what there is to be learnt from puzzles [our] interlocutors pose to us, by assuming there is method in their madness and doing our best to ferret that out, using everything else we know or can guess (in part from their likeness and kinship to us) about where they are coming from.’

Hard as it may be to put our own thoughts into a coherent, compelling fashion, harder still is it to credit, and to give at least initial priority to, the claims of others who stand in apparent disagreement with our own positions. To do so takes work. Real work. And patience. The authors of this collection of colloquies are decidedly not out there playing games of ‘gotcha’. They are engaged in a collective effort to close down areas of difference (even as they take risks associated in opening up new areas of exploration). The purpose in crediting our interlocutors as we do is to sharpen the critical bite of outstanding differences. Sometimes a pair of conversants will wind up singing off the same hymn sheet. In other dialogues, presenters are forced to rethink their initial positions, and provide reassessments or clarifications thereof in footnotes that address the challenges posed by their respondents. Again: We hope that this format will help illustrate the complexity of certain topics, whilst highlighting areas of agreement and disagreement in others.

The topics are diverse but all engage matters of great import for South African constitutional law. Some authors ask us to reconsider our disciplinary bias – as lawyers – by asking questions about the relationship between theory and practice across diverse forms of life, and whether law

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is fundamentally different than other norm driven social practices (such as religion, golf or psychoanalysis). Others hold fast to the received wisdom that law is an autonomous domain in which theory and practice differ from other ways of being in the world. Other authors discuss questions of constitutional doctrine that seem deceptively simple on their face: ‘rationality review’. Both authors, in this colloquy, leave us with entirely fresh understandings of how we should read the Constitutional Court and develop the doctrine in this domain. At the same time, one cannot be faulted for thinking that far too much ink has been spilled on the desirability of ‘balancing’ in our constitutional jurisprudence. And yet we are here asked to engage with the nuanced conception of proportionality and balancing gleaned from the well-known work of Robert Alexy. One of the more hotly contested debates in our current jurisprudence concerns the place of the value ofubuntu– and its relationship to dignity and other rights in our constitutional order. This colloquy’s constructive engagement between a former Constitutional Court justice, a critical theorist and a ‘run-of-the-mill’ constitutional law scholar does not lead us down the intellectual dead end of cultural relativism and value incommensurability. Instead, it demonstrates the way in which a dominant norm in Western ethical discourse can itself be illuminated by comparison and contrast to a central feature of African thought.

Well, if dignity has its day, equality must also have its say. In a ground- breaking exchange on whether the Bill of Rights applies to non-human animals, the authors ask whether equality, and the underlying ethic that demands rejection of all forms of arbitrary discrimination, ought not as a matter of consistency be applied to the ongoing crimes committed against many of the animals that share our society. In another bracing exchange, two authors seek out the best justification for a democratic constitutional order – toleration, diversity, social capital – and the ramifications those justifications have for questions of differentiation and discrimination in religious communities.

In a particularly challenging conversation, two authors ask us to reconsider our notion of ‘citizenship’ and whether its expansion beyond a discernible territorial republic is possible, let alone desirable. Other colloquies deal with subjects that initially feel more familiar. The apparently well-worn topic of judicial deference in socio-economic rights cases creates a catalyst for two fresh looks at this area in which everyone wants to know: What social entitlements can we expect to receive when all is said and done? Our constitution identifies openness and democracy as foundational values. Two interlocutors ask how open our democracy is and whether the judiciary can play a meaningful role in maintaining the transparency and the accountability of the coordinate branches – particularly in the face of a constitutional crisis. As if genuine finality could be achieved in any of these colloquies, we are asked to think again about how much clarity the Constitutional Court owes its constituents in a democracy committed to the rule of law. The exchange in this debate (that has now spread beyond the bounds of this extended colloquy) engages the coherence of some of the Court’s judgments and the expectation of clear precedents for those of us who wish to conform our behaviour to the dictates of the basic law.

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Finally, real communities and sustained conversations – unlike ideal communities and imagined interlocutors – require real resources. We would like to thank the Konrad Adenauer Stiftung for their financial support of theIs This Seat Taken? Conversations at the Bar, the Bench & the Academyseries and colloquia – and its regular support for other similar endeavours.In January 2011, SAIFAC became a Centre of the University of Johannesburg and we are grateful for the continued support of the Faculty of Law for SAIFAC’s activities.

Discrete grants from the World Bank andConstitutional law of South Africahave made dissemination of these colloquies possible in this format. Many of the exchanges were previously published in 2010 in a special edition ofSouthern African Public Law.We are grateful to the editors of the SAPL– both for their initial collaboration and their subsequent permission to re-publish the majority of the articles that appear in this book. TheSouth African Journal on Human Rightsand theSouth African Law Journal have, likewise, graciously allowed for the reprint of previous exchanges here. We would like to express our deepest appreciation to Lizette Hermann, our Pretoria University Law Press publisher, and SAIFAC Researcher, Juha Tuovinen, for their hard work in seeing this book into print. Finally, no event or publication at SAIFAC would ever come to fruition without the ongoing commitment of staff members Dolores Joseph and Vusi Ncube to the smooth day-to-day functioning of the Institute.

Professor Stu Woolman University of the Witwatersrand Professor David Bilchitz University of Johannesburg South African Institute for Advanced Constitutional, Public, Human Rights & International Law The Old Fort, Constitution Hill, Braamfontein, Johannesburg, South Africa

March 2012

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1 HAPTER C

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R ATIONALITYISDEAD ! L ONGLIVERATIONALITY ! S AVINGRATIONAL BASISREVIEW *

Michael Bishop**

[T]he word ‘test’ is inappropriate, at least insofar as it suggests some meaningful analytical framework to guide judicial decision making, because the rational basis test is nothing more than a Magic Eight Ball that randomly generates different answers to key constitutional questions depending on who 1 happens to be shaking it and with what level of vigor.

Introduction

2 Rational basis review has been in trouble for a while. For at least the past 3 4 35yearsithas been constantly criticisedforbeing‘empty’, ‘toothless’, 5 6 inconsistent and incoherent. Despite its doubtful pedigree, litigants

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I would like to thank Alistair Price for agreeing to reply to this paper and for the many conversations which I can only hope were as enlightening for him as they were for me. This paper was originally written for a seminar on public law at Columbia Law School run by Prof Gillian Metzger and Prof Trevor Morrison. I would like to thank them both for giving me the opportunity to write the paper and for their helpful comments on the original draft. I would also like to thank Stu Woolman, JamesFowkes,theanonymous referees andall the participants at theSAIFAC seminarfor their comments. All errors, of course, remain my own. BA (Law) LLB LLM (Pretoria) LLM (Columbia); Visiting Research Fellow, Columbia Law School; Extraordinary Lecturer, Department of Public Law, University of Pretoria. C Neily ‘No such thing: Litigating under the rational basis test’ (2005) 1New York Journal of Law andLiberty898 898. See, eg, H Linde ‘Due process of lawmaking’ (1975) 55Nebraska LR197; G Gunther ‘Foreword: In search of evolving doctrine on a changing court: A model for a newer equal protection’ (1972) 86Harvard LR1; Note ‘Legislative purpose, rationality, and equal protection’ (1972) 82Yale LJ123; R Bennett ‘“Mere” rationality in constitutional law: Judicial review and democratic theory’ (1979) 67California LR1049. See, eg, n 2 above 128. See, eg, Gunther (n 2 above) 18 - 19; S Bice ‘Rationality analysis in constitutional law’ (1980) 65MinnesotaLR1 at 3 - 4;In re Agnew(7th Cir 1998)144 F 3d 1013 1014. See, eg, Bennett (n 2 above) 1060; R Farrell ‘Legislative purpose and equal protection’s rationality review’ (1992) 37Villanova LR1 2. M Meyers ‘Impermissible purposes and the equal protection clause’ (1986) 86Columbia LRSunstein ‘Public values, private interests and the equal protection1184 1184; C clause’ (1982)SupremeCourt Review127 144.

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continue to rely on it and the courts refuse to alter the test to answer their critics. This essay is one more in a long lineage of attempts to figure out what is wrong with rational basis review and propose a way forward.

AlthoughI relyextensivelyonearlierwork in the area, I have taken a different tack. Firstly, I offer a comparative perspective that looks at the law in both the United States and South Africa. The formulation of the tests and judicial attitudes toward their enforcement are virtually identical in both countries. Yet the US has a much longer history of cases and scholarshipSouth African courts asthat address the problem that can teach much from its failures as its successes. South Africa also makes an interesting comparison from the US point of view, because it illustrates how even a system without signs of the extreme excesses of US jurisprudence is in need of saving and may offer some hints on what the route to salvation 7 might be.

Secondly, my goal is not to identify all theinconsistenciesand 8 9 absurdities of rational basis theory or practice. Instead I want to show how the test fails to do what it is meant to do and to suggest that a re-think of how we justify and conceptualise the test is required. I begin in part 2 by specifying the form of the test and noting some of the major differences between US and South African jurisprudence. Part 3 examines the justifications for rational basis review and deduces what type of test those justifications envisage and what types of laws they require to be struck down. The heart of my analysis comes in part 4whereIdescribe howthe rational basis testisincapableofuniformorroutineapplication; its outcomes cannot be neatly deduced from a formula but are almost entirely dependent on the discretion of litigants, lawyers and, most importantly, judges. Part 5 demonstrates how the analysis in part 4 unmoors the rational basis test from its traditional justifications. Finally, in part 6, I suggest an additional justification for the test that is compatible with the

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In his excellent reply, Price notes that there is an important difference between equality analysis in the two countries: many laws that are tested under rationality review in the US will be tested under the more exacting unfair discrimination standard in South Africa. A Price ‘The content and justification of rationalityreview’in S Woolman & D Bilchitz (eds)Is this seat taken? Conversations at the Bar, the bench and the academy about the South African Constitution (2012)37. This is true and perhaps explains why rational basis review has attracted much more attention and criticism in the US than in South Africa. However, there is still a significant class of cases – differentiation on grounds not listed in sec 9(3) or analogousgrounds– that is subjected to rationalityreviewin both nations. Those are theprimarysubject of this paper. Price also notes that the criticisms leveled at American courts’ treatment of rationality review cannot be uncritically transposed to South Africa. Again he is correct. South African courts have, thus far, been far morecircumspectin their applicationandexplication of rationalityreviewthan their American counterparts. There are places in the paper where I unfairly lump all the sins of one on both. If I could rewrite it, I would change that. However, I would argue, and I would hope this paper demonstrates, that the way the test is structured and the justifications offered in favour of it are virtually identical on both sides of the Atlantic. See, eg, Note (n 2 above); Linde (n 2 above). See, eg, Neily (n 1 above).

Rationaliy is dead! Long live rationality! Saving rational basis review 3

reality of rational basis review and formulation of the test might look like.

suggest what an

appropriate

Three small notes are in order before I begin. First, I am only concerned with the rational basis test in the context of equality claims. Much here might be applicable to the other contexts in which rationality review occurs, but I do 10 not directly address those issues here. Second, Price has written a fantastic response to this essay in which he carefully tests my assertion that there is 11 something wrong with the current groundwork of rationality review. I agree with much of what Price says and believe his work deepens our understanding of the role rationality review can and should play in a constitutional democracy. I am deeply indebted to him andfor his careful generous engagement with my ideas. However, there are areas – some more important, some less so – in which we differ. In order to maintain the call- and-response character of our conversation, I do not react to Price in the text, although it certainly would be greatly improved if I did! Avid readers will, however, find my thoughts on some of his claims in footnotes. Third, since writing this paper, the Constitutional Court handed down four important 12 decisions on rationality as an element of legality. I have not incorporated these cases into my discussion but refer to them because they will be of interest to readers of this article. However, both them andPrice and I have discussed 13 their relation to this paper’s thesis in other fora.

In short, I believe that the four decisions – especially when read together – confirm and support the analysis offered below. But this article should be read as stating the law at the end of 2009.

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Price does tackle rationality in all its guises. I thin k much maybe gained from considering all occurrences of rationality review together. However, I have two partially conflicting reasons for focusing on equality. One, I think that, ultimately, virtually any case in which rationality arises can be framed as a differentiation. There are technical reasons why the challenge will not be brought under sec 9(1) – if, eg, it is a challenge to a constitutional amendment – but the substance of the test is the same. Two, although any challenge can be brought as a differentiation claim, something happens when we invoke the right to equality that subtly changes the nature of the complaint. Unequal treatment is the starting point. Rationality is the standard we use to determine whether the unequal treatment – which we intuitively think of as somewhat unjust – is acceptable. When rationality is applied without the allegation of differentiation the flaw is the irrationality alone, not any additional underlying wrong. That distinctionwill affect both theI think the nature of, the test we use.justifications for, and These reasons justify looking at rationality separately in the context of equality, even if the vast majority of insights are translatable to, and from, other contexts. Price (n 7 above). Albutt v Centre for the Study of Violence and Reconciliation2010 3 SA 293 (CC), 2010 2 SACR 101 (CC), 2010 5 BCLR 391 (CC);Poverty Alleviation Network v President of South Africa [2010] ZACC 5, 2010 6 BCLR 520 (CC);Law Society of South Africa v Minister for Transport2011 1 SA 400 (CC), 2011 2 BCLR 150 (CC);Glenister v President of the Republic of South Africa[2011] ZACC 6. See, A Price ‘Rationality review of legislation and executive decisions:Poverty Alleviation NetworkandAlbutt’ (2010)SALJ580; M Bishop& JBrickhill ‘Constitutional law’ (2010) 1Juta’s Quarterly Reviewpara 2.1 - 2.2; M Bishop & J Brickhill ‘Constitutional law’ (2010) 4Juta’s Quarterly Reviewpara 2.1; M Bishop & J Brickhill (2011) 1Juta’s Quarterly Reviewpara 2.1.