In defence of the Constitutional Court : human rights and the South African common law

• Pages: 1-31
• DOI: 10.10520/EJC123683
• Author: Nick Friedman,Drucilla Cornell
• Date: 01 January 2011
• Published date: 01 January 2011

IN DEFENCE OF THE CONSTITUTIONAL

COURT: HUMAN RIGHTS AND THE SOUTH

AFRICAN COMMON LAW

Drucilla Cornell* and Nick Friedman**

ABSTRACT

Section 39(2) of the South African Constitution is one of the primary tools

through which the Constitution is intended to do its revolutionary work, by

requiring that all legislation, common law and customary law be inter-

preted and developed in accordance with the spirit, purport and objects of

the Bill of Rights. As a result of the Constitutional Court’s interpretation of

that section, the Constitution has had and will continue to have a rightly ex-

tensive and transformative impact on the law governing relations between

private persons. Despite that impact, or perhaps because of that impact, cer-

tain commentators have called that interpretation into question. In this

article, we explain that the South African Constitution ought to be inter-

preted holistically and teleologically. Once the nature of constitutional

interpretation is properly understood, and once section 39(2) is then viewed

through the appropriate interpretive lens, it will be seen that courts are in-

deed mandated to develop the common law, of their own accord if need be,

in each case that comes before them. Furthermore, it will be seen that that

development must promote the values of the Constitution as a whole (and

notjustoftheBillofRights).

I INTRODUCTION

In a previous essay1in this Journal, we reviewed the body of Ronald

Dworkin’s work, from his Taking rights seriously to Justice for hedgehogs.We

HUMAN RIGHTS AND SOUTH AFRICAN COMMON LAW 1

Professor of Political Science, Women's Studies and Comparative Literature at Rutgers Univer

sity; Visiting Professor at the University of Pretoria and Birbeck College, University of London.

Tutor in Jurisprudence, St Anne's College, University of Oxford, and Proctor Fellow, Princeton

University.

*

**

1Drucilla Cornell & Nick Friedman ‘The significance of Dworkin’s non positivist jurisprudence

for law in the post colony’ (2010) 4(1) Malawi Law Journal 1.

showed that his thought has culminated in a defence of the rule of law as an

aspirational ideal of legality, according to which law’s integrity is a matter of fi-

delity to Dworkin’s two principles of dignity. At the time we wrote that piece,

the integrity of the South African Constitution was being seriously and pub-

licly questioned, most noticeably by certain figures within the country’s ruling

party (in the wake of Jacob Zuma’s corruption trial, and the scandal surround-

ing John Hlophe and the Constitutional Court). Thus, given the foundational

role which integrity has played in Dworkin’s thinking about the law, we

thought it prescient to offer an interpretation of the South African Constitu-

tion through the lens of his work.

However, we also wrote from a concern with a different kind of attack on

the Constitution, an attack from within the legal academy which seeks to un-

dermine the impact of the Constitution on the ‘private’ law. In our present

paper, we write to address that concern more directly. In particular, we write

to defend the Constitutional Court’s interpretation of section 39(2) of the

Constitution. Section 39(2) is one of the cornerstones of South Africa’s consti-

tutional framework – indeed, it is one of the primary tools through which the

Constitution is intended to do its revolutionary work, by requiring that all leg-

islation, common law and customary law be interpreted and developed in

accordance with the spirit, purport and objects of the Bill of Rights. As a result

of the Court’s interpretation of that section, the Constitution has had and will

continue to have a rightly extensive and transformative impact on the law gov-

erning relations between private persons.

Despite that impact, or perhaps because of that impact, certain commen-

tators have called that interpretation into question. A particularly fierce critic

of the Court’s section 39(2) jurisprudence is Professor Anton Fagan, who has

argued against the Court’s approach to constitutional interpretationi n aseries

of papers concerned foremost with the law of delict.2We believe that Professor

Fagan’s arguments speak broadly for a particular academic view of the nature

and purpose of the Constitution, and we therefore focus in this paper on an

engagement with his criticisms of the Court.

Right at the outset we should say that we do not engage here with Fagan’s

doctrinal analysis of the principles of the law of delict. Much of what he writes

about the state of the law on delictual liability is of great interest and impor-

tance. Indeed, continued doctrinal reflection on the common law is not only

2(2011) MLJ VOL.5, ISSUE 1

2Anton Fagan ‘The secondary role of the spirit, purport and objects of the Bill of Rights in the

common law’s development’ (2010) 127(4) South African Law Journal 611; ‘The Confusions of

K’ (2009) 126 South African Law Journal 154; Anton Fagan ‘Reconsidering Carmichele’ (2008)

125 South African Law Journal 659; ‘Section 39(2) and political integrity’ in Francois du Bois (ed)

The practice of integrity: Reflections on Ronald Dworkin and South African law (2005) 117.