Planting seeds for the future: Dissenting judgments and the bridge from the past to the present

JurisdictionSouth Africa
Pages91-127
AuthorPlasket, C.
Date17 January 2021
Citation(2020) 26(1) Fundamina 91
Published date17 January 2021
91
PLANTING SEEDS FOR THE
FUTURE: DISSENTING JUDGMENTS
AND THE BRIDGE FROM THE PAST
TO THE PRESENT
Clive Plasket*
ABSTRACT
The pri ncipal focus of this contr ibution concerns ve cases involving
questions
of
public
law,
namely
the
meaning
of
discrimination;
the
meaning of public power and its control; whether administrativ e actions
may be reviewed for unreasonableness; the rights of prisoners; and
the co ntrol of em ergency powers in the fa ce of an ouster clause.
All
ve cases were decided in the Appellate Division of the Supreme Court
of South Africa, now known as the Supreme Cour t of Appe al, and all
were de cided prior t o 1994 : in 1934, 1958, 1976, 1979 and 19 88.
In
each, a dissenting judgment was delivered that articulated values that
we today associate with our present democratic Constitution.
Before
dealing
with
those
cases
in
detail,
it
is
necessary
to
say
something
about the c onnection between the pre- and post-1994 law, and the n
to consider the role of some dis senting judgme nts in the deve lopment
of the law.
Keywords:
dissenting judgments; development of law; racial discrimination;
meaning of public power; unreasonable administrative action; ouster
clauses
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CLIVE PLASKET
92
1 The connection between the past and the
present
The rst judgment of the Constitutional Court, S v Zuma,1 was
written by Kentridge AJ. Not surprisingly, for the highest court’s
rst steps in the democratic era, it considered how the past
connected with the present – the relationship between the law
prior to 27 April 1994 and the law from that day on. Kentridge AJ
referred to the judgment of Froneman J in Qozoleni v Minister of
Law and Order,2 in which he had said that the “mischief” the interim
Constitution had sought to remedy was the previous constitutional
system. Kentridge AJ said that he was sure that Froneman J had
not intended “to say that all principles of law which have hitherto
governed our courts are to be ignored” because “[t]hose principles
obviously contain much of lasting value”.3
This theme was taken up and explored in a number of the
judgments in the death penalty case, S v Makwanyane,4 and perhaps
most eloquently by Mahomed J when he said:5
All Constitutions seek to articulate, with differing degrees of intensity
and detail, the shared aspirations of a nation; the values which bind its
people, and which discipline its government and its national institutions;
the basic premises upon which judicial, legislative and executive power
is to be wielded; the constitutional limits and the conditions upon which
that power is to be exercised; the national ethos which denes and
regulates that exercise; and the moral and ethical direction which that
nation has identied for its future. In some countries the Constitution
only formalises, in a legal instrument, a historical consensus of values
* BA, LLB, LLM (Natal), PhD (Rhodes), Judge of the Supreme Court of
Appeal, Honorary Visiting Professor, Rhodes University. This contribution
is based on a lecture presented at the Faculty of Law, Rhodes University,
Makhanda on 8 Oct 2019.
2 1994 (3) SA 625 (E) at 635B–C. He had said: “The only material difference
between the common-law approach [to statutory interpretation] and the
present approach is the recognition that the previous constitutional system of
this country was the fundamental ‘mischief’ to be remedied by the application
of the new Constitution. That Rubicon needs to be crossed not only
intellectually, but also emotionally, before the interpretation and application
of the present Constitution is fully to come into its own right.”
3 Idem para 17.
5 Idem para 262.
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PLANTING SEEDS FOR THE FUTURE: DISSENTING JUDGMENTS
93
and aspirations evolved incrementally from a stable and unbroken past to
accommodate the needs of the future. The South African Constitution is
different: it retains from the past only what is defensible and represents
a decisive break from, and a ringing rejection of, that part of the past
which is disgracefully racist, authoritarian, insular, and repressive, and a
vigorous identication of and commitment to a democratic, universalistic,
caring and aspirationally egalitarian ethos expressly articulated in the
Constitution. The contrast between the past which it repudiates and the
future to which it seeks to commit the nation is stark and dramatic.
A similar analysis was undertaken by Chaskalson P (as he then
was) in Pharmaceutical Manufacturers Association of SA: In re ex
parte President of the Republic of South Africa6 in explaining the
relationship between the common law – the engine room of judicial
review prior to April 1994 – and the Constitution. Chaskalson P
explained that, prior to 1994, “silences in the constitutional order”
were regulated by common-law principles that included “the rule
of law, the supremacy of Parliament and the prerogative”.7 In
particular, when the exercise of public power was regulated by the
courts through judicial review, this was achieved by the application
of common-law principles, particularly the rule of law and the
doctrine of parliamentary supremacy:8 judicial review enabled the
courts, “whilst recognising the supremacy of Parliament, to place
constraints upon the exercise of public power”.9
The interim Constitution of 1993 and the Constitution of
the Republic of South Africa, 1996 fundamentally changed this
position. The doctrine of parliamentary supremacy was replaced
with the doctrine of constitutional supremacy, but other common-
law constitutional principles have been incorporated into the
present constitutional order. They include the rule of law, as well as
fundamental rights that are far more extensive – and secure – than
the fundamental rights recognised by the common law. Specic
provision is made for judicial review in section 172 of the 1996
Constitution.10 The result is that “[p]owers that were previously
regulated by the common law under the prerogative and the
principles developed by the courts to control the exercise of public
7 Idem para 35.
8 Idem para 37.
9 Idem para 38.
10 Idem para 40.
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