Deciding matters of general public importance: An analysis of the value-laden approach

• Author: Nkoane, P.
• DOI: https://doi.org/10.47348/SLR/2022/i2a2
• Published date: 24 June 2022
• Date: 24 June 2022
• Citation: (2022) 33 Stell LR 185
• Pages: 185-205

185

https://doi.org /10.47348/ SLR/2 022/i2 a2

DECIDING MATTERS OF GENERAL PUBLIC

IMPORTANCE: AN ANALYSIS OF THE VALUE-

LADEN APPROACH

Paul Nkoane

BComm LLB LLM

Lecturer, University of South Africa*

Abstract

There is no doubt that the Constitution of the Republic of South Africa, 1996

is supreme. Thus, all laws and conduct should conform to it. However, the

Constitution is constructed in such a manner that can lead to the questioning

of its scope and therefore the extent of its supremacy. The provisions of the

Constitution are crafted to focus on specic issues. This has led some to

question its reach in matters that do not raise clear constitutional questions.

This article is intended to provide a historical overview of the foundation of the

Constitution and concomitantly to untangle its reach and scope. The analysis

reveals that the scope of the Constitution extends far beyond the frontier of its

provisions in the Bill of Rights. This then entails that matters of general public

importance that do not raise clear constitutional questions could be decided

through the application of constitutional standards.

Keyword s: Constitutional values; general public importance; the common

good; Constitutional Cou rt

1 Introduction

The debate about the reach of the Constitution of the Republic of South

Africa, 1996 (the “Constitution”) and the jurisdiction of the Constitutional

Court remains relevant in the legal sphere.1 The opposing views have their

own merits. One view is that the Constitution is limited in scope. This view is

based on the provision of the Constitution that limited the jurisdiction of the

Constitutional Court.2 However, this limitation does not entail the limitation

of the Constitution itself. With the extension of the jurisdication of the

Constitutional Court, which improved that court’s reach to determine matters

of general public importance, uncertainty has surrounded the standard that the

* This art icle is based on a section of t he author’s LLM dissert ation titled Analysi ng the Jurisdictio n of the

Constitut ional Court To Hear Appeal s on Matters of General Pu blic Importance LLM t hesis University

of Cape Town (2019)

1 Contrast A Faga n “Reconsideri ng Carmichele ” (2008) 125 SALJ 659 with C Roedere r “Remnants of

Apartheid C ommon Law Justice: T he Primacy of the S pirit, Pur port and Object s of the Bills of Rights for

Developing the Com mon Law and Bringi ng Horizontal R ights to Fruition” (2013) 29 SAJHR 219

2 See s 173 of the Constitut ion of the Republic of Sout h Africa, 1996 (the “C onstitutio n”) before the

Constitution Seventeenth Amendment Act 72 of 2012 (the “Seventeenth Amendment”)

(2022) 33 Stell LR 185

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(2022) 33 Stell LR 185

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https://doi.org /10.47348/ SLR/2 022/i2 a2

court should apply when deciding such matters.3 Of course, the distinction

between constitutional matters and so-called non-constitutional matters is

blurry.

A similar blurriness affects the distinction between matters of general

public importance and constitutional matters. If we attempt to make sense of

the distinction, we could argue that one would be hard-pressed to raise a clear

constitutional question when seeking to determine a fair value for contractual

damages. The determination of such matters could raise an arguable point of

law of general public importance because any person can petition a court to

decide such a case of breach of contract. This would be an important public

matter in which the public can greatly benet from the court’s decision.

Nevertheless, such a matter may not necessarily raise a clear constitutional

question and thus could be regarded as non-constitutional. The Constitutional

Court, staying true to its appellate jurisdiction, would have been reluctant or

hesitant to hear the matter merely to determine fair value without the invocation

of a clear constitutional question. The extension of the court’s jurisdiction has

provided the court with the authority to infuse constitutional values into any

matter of general public importance raising an arguable point of law. However,

not all matters of general public importance may be heard by the Constitutional

Court. The matter must raise an arguable point of law.4 The court will assess,

among other things, the merit of the arguments in determining whether there

is an arguable point of law and the court must feel that the appeal may succeed

if heard.5

In this contribution it will be argued that the standard the courts should adopt

in deciding matters of general public importance should be a combination of

constitutional values and the common good. It will illustrate how the use of

value-laden standards has become an essential part of interpretation of the law

as well as law-making. It is obvious that a court ought to use rules that are

supported by standards when adjudicating matters brought before it. Before

the dawn of constitutional democracy, the standard that the courts applied

limited the courts to a strict interpretation of the law. Although the courts

could interpret the common law with the aim to improve it, the legislature had

far more leverage to determine the standard that governs legal matters. The

legislature could even pass a statute that undermined the improvement of the

common law. The legislature had a greater inuence on the law in general.

Though the current legislature is still vested with law-making authority,

the exercise of that authority must not steer a course clear of constitutional

standards. This illustrates that the standard that governs must be constitutional

in the true sense of the word.

The article will demonstrate the effect that constitutional values have on the

law in general. Thus, the standard that governs legal matters must be informed

by constitutional values. The proper use of values should illustrate whether

constitutional standards and the common good are promoted. In truth, the

3 See Fagan (2008) SAL J 159; Roederer (2013) SAJHR 219

4 Paulsen v Slip Kn ot Investments 777 (Pt y) Limited 2015 3 SA 479 (CC) para 20

5 Paras 21 and 22

186 STELL LR 2022 2

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