Closure and Openness on Difference and Democracy — A Response to Justice Johan Froneman

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Citation: (2001) 12 Stell LR 28
• Pages: 28-39
• Date: 27 May 2019
• Author: AJ van der Walt

CLOSURE AND OPENNESS ON DIFFERENCE

AND DEMOCRACY - A RESPONSE TO JUSTICE

JOHAN FRONEMAN

1

AJ van der Walt

B lur Honns (BA) LLB LLD (PUCHE) LLM (Witwatersrand)

Professor, University of Stellenbosch.

By way of introduction I will summarise, in a few sweeping statements,

what I regard as some of the main points Justice Froneman made.

2

These

statements will serve as a point of departure for an excursion into the law

reports to unearth a few illustrations of the issues raised by him. The

main points of the Froneman paper I want to highlight are:

•

Our future is black in the sense that the major political and

institutional decisions are in future likely to be made by black people.

•

Our views on democracy and on society and the law influence and

shape our interpretation of the Constitution.

•

The way in which black people in institutions such as the judiciary, the

Judicial Services Commission and the Human Rights Commission

regard democracy and how their views of democracy colour their

interpretation of the Constitution may have lasting effects on our society.

•

Views on democracy, society, law and the Constitution are deeply

contested, not only in white but also in black society. The perception of

a settled, uncontested, essentially and characteristically white or black

view on these matters creates the illusion that it is possible to avoid

responsibility for the meaning we give to democracy by appealing to

one or the other of these supposedly uncontested white or black views

(or to the supposedly clear contrast between them).

•

When we have to make hard choices between contested views and

interpretations of democracy, the greatest danger is that we should

insulate our decisions from dissent or from further discussion or from

subsequent change by couching them in terms or forms that present

them as uncontested, fixed, or final.

Response to the opening address delivered by Justice Johan Froneman, entitled "Democracy,

Constitutional Interpretation, and the African Renaissance", at the second Colloquium, entitled

Legal

Interpretation in South Africa's Age of Constitutionalism,

presented by the Research Unit for Legal and

Constitutional Interpretation (RULCI) at the University of Stellenbosch, 17-18 August 2000. Thanks

to Justice Froneman for making his paper available to me well in advance of the Colloquium date; to

Geo Quinot for expert research assistance and helpful discussion of the Froneman paper and of

possible responses to it; and to Frank Michelman and Irma Kroeze for helpful discussions and for some

useful further references.

2

I take comfort from the fact that we all commit violence upon each other through the exclusions of our

words, as was so poignantly explained by Robert Cover "Violence and the word" 1986

Yale LJ

1601-

1629. Justice Froneman illustrated the inevitability of this process, much in the same way that I am

summarizing his paper, by making the selections of the words of the "black voices" he wants us to listen

to "in their own words".

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(2001) 12 Stell LR 28

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