PLANTING SEEDS FOR THE FUTURE: DISSENTING JUDGMENTS AND THE BRIDGE FROM THE PAST TO THE PRESENT

• Date: 17 January 2021
• Published date: 17 January 2021

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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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.

1 1995 (2) SA 642 (CC).

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.

4 1995 (3) SA 391 (CC).

5 Idem para 262.

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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

6 2000 (2) SA 674 (CC).

7 Idem para 35.

8 Idem para 37.

9 Idem para 38.

10 Idem para 40.

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