'Subsidiarity': What's in the Name for Constitutional Interpretation and Adjudication?
| Jurisdiction | South Africa |
| Date | 27 May 2019 |
| Pages | 207-231 |
| Author | Lourens du Plessis |
| Published date | 27 May 2019 |
| Citation | (2006) 17 Stell LR 207 |
‘‘SUBSIDIARITY’’: WHAT’S IN THE NAME FOR
CONSTITUTIONAL INTERPRETATION AND
ADJUDICATION?
Lourens du Plessis
B Jur et Comm LLB B Phil LLD Hons BA
Professor of Public Law, University of Stellenbosch
1 Introductory remarks
‘‘I would lay it down as a general principle that where it is possible to decide any case, civil or
criminal, without reaching a constitutional issue, that is the course which should be followed.’’
1
This seemingly unspectacular dictum comes from the minori ty
judgment in the controversial Mhlungu case,
2
one of the earliest
judgments of the South African Constitutional Court. Though it is not
often cited (both in the literature and the case law) the said dictum seems
to articulate a ‘‘principle’’ of considerable significance.
3
The purpose of
this article is to show that this dictum and the ‘‘principle’’ to which it
refers are commensurate with and indeed a verbalisation of the notion of
subsidiarity which, subject to caveats, has a constructive role to play in
constitutional interpretation and adjudication. It will moreover be argued
that (and shown why) it is desirable to name (and thereby explicitly
recognise) the hitherto unnamed ‘‘Mhlungu principle’’ as an instance of
adjudicative subsidiarity, and to distinguish it from other forms of
subsidiarity which are also of interpretive and adjudicative significance.
2 ‘‘Subsidiarity’’: general observations
When looking for a dictionary definition of subsidiarity a fir st
observation of significance is that most dictionaries — and especially
1
Per Kentridge AJ in S v Mhlungu 1995 7 BCLR 793 (1995 3 SA 867) (CC) par 59; cf also Motsepe v
Commissioner for Inland Revenue 1997 6 BCLR 692 (CC) par 21; National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC) par 21; Minister of Education v
Harris 2001 11 BCLR 1157 (CC) par 19.
2
The case was controversial not because of the dictum abovesaid, but because the Court was split
almost in the middle on the question precisely how literal an assumedly ‘‘technical’’ provision of the
transitional Constitution had to be be construed. Subsequently the majority of the Court was criticised
for violating the language of (what was perceived to be) rather straightforward, clearly worded ‘‘black-
letter’’ law — cf eg Fagan ‘‘The longest Erratum Note in History. S v Mhlungu and Others
‘‘The Ordinary Meaning of Language — A Response to Professor Davis’’ 1997 SAJHR 174. Other
commentators subsequently stepped in with a spirited defence of the majority’s non-literalist approach
—cf Davis ‘‘The Twist of Language and the Two Fagans: Please Sir May I Have Some More
Literalism’’ 1996 SAJHR 504; De Ville ‘‘Eduard Fagan in Context’’ 1997 SA Public Law 493 and
Mischke ‘‘This is a (Foot)note in G Minor’’ 1997 SA Public Law 514.
3
Cf eg Currie & De Waal The New Constitutional and Administrative Law 1 (2001) 328.
207
(2006) 17 Stell LR 207
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older and South African ones — contain no entry for ‘‘subsidiarity’’ /
‘‘subsidiariteit’’.
4
The New Oxford Dictionary of English describes
subsidiarity ‘‘in politics’’ as ‘‘the principle that a central authority should
have a subsidiary function, performing only those tasks which cannot be
performed at a more local level’’.
5
In The Shorter Oxford English
Dictionary,
6
a similar definition is preceded by the observation that
subsidiarity is ‘‘[t]he quality of being subsidiary’’. These dictionary
definitions imply that subsidiarity — a principle tracing its origins to
Roman Catholic social thought
7
and, more particularly Pope Pius XI’s
encyclical Quadragesimo Novarum from the year 1931 — centrifugalises
the power of social institutions or bodies functioning within the ambit of
one and the same social sphere.
Meyers Lexikon: Das Wissen A-Z
8
describes Subsidiarita
¨t
9
as ‘‘das
Zuru
¨cktreten einer von mehreren an sich anwendbaren Rechtsnormen
kraft ausdru
¨ckl. oder durch Auslegung zu ermittelnder gesetzl. Anord-
nung’’. This very German description defies literal translation into
English.
10
What it envisions is a situation in which several legal norms are
in themselves
11
applicable, but an explicit legal
12
directive — or a
directive established through interpretation — excludes one of the
(contending) legal norms from consideration for application in that
particular situation — the said norm ‘‘steps down’’, as it were. According
to this description, subsidiarity does not necessarily require (but also does
not exclude) either a hierarchy or a variance in the scope or
comprehensiveness of the norms considered for application. It simply
states that subsidiarity manifests as the law’s preference for legal norms A
and B and C for — and the exclusion of legal norm X from — possible
application in a given situation.
There is a paucity of references to subsidiarity in South African case
law, but the references that do occur reflect a perception of subsidiarity
commensurate with (though not identical to) the description in Meyers.
In Absa Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers,
13
Van
Zyl J agreed with two legal scholars’ assertion that, in German law, the
availability of an action for indirect enrichment only when an action for
direct enrichment is not possible or enforceable, constitutes a
4
Van Wyk Subsidiariteit as Waarde wat die Oop en Demokratiese Suid-Afrikaanse Gemeenskap ten
Grondslag Le
ˆin Carpenter (ed) Suprema Lex. Essays on the Constitution Presented to / Opstelle oor die
Grondwet Aangebied aan Marinus Wiechers (1998) 251 252 seems to have had a similar experience.
5
Pearsall (ed) The New Oxford Dictionary of English (1998) 1851.
6
The Shorter Oxford English Dictionary on CD-ROM 5 ed Version 2.0 (2002).
7
Kommers The Constitutional Jurisprudence of the Federal Republic of Germany 2 ed (1997) 113; Van
Wyk Subsidiariteit 254.
8
PC Bibliothek. Meyers Lexikon: Das Wissen A-Z (1993).
9
Derived from Latin.
10
It can more literally be translated into Afrikaans as ‘‘die terugtrede van een van meerdere as sodanig
aanwendbare regsnorme kragtens uitdruklike of deur uitleg bepaalde wetsverordening’’.
11
Or ‘‘as such’’.
12
‘‘Legitimate’’ is also implied.
13
1998 1 SA 939 (C) 947B.
208 STELL LR 2006 2
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