The people, the court and Langa constitutionalism

• Jurisdiction: South Africa
• Author: James Fowkes
• Pages: 75-87
• Published date: 15 August 2019
• Date: 15 August 2019

The people, the court and Langa

constitutionalism

JAMES FOWKES*

The extra-curial writings of the late Chief Justice Langa contain several brief

but suggestive references to the role of the People in South African constitu-

tionalism – references that go beyond the standard court-centric picture in

which the people, having underwritten the Constitution as popular sover-

eigns, are thereafter conf‌ined to supporting roles: bringing cases, complying

with orders, supporting the courts to defend their independence. The writings

of the late Chief Justice should encourage us to consider the more active and

positive role that the people can play as constitutional agents, including as an

ongoing source of interpretative activity. This constitutes an important quali-

f‌ier to the dominant tendency in current writing on South African constitu-

tionalism to see political forces as threats and public opinion as an obstacle. It is

also more than an attractive but hypothetical possibility: I argue that it will

assist us to see how much of the South African Constitutional Court’sactivity

since 1994, including all of its most globally-celebrated bold cases, are

constructed to a signif‌icant extent on pre-existing public foundations built by

forces both inside and outside the ANC government – an important rebuttal

to prevailing court-centric accounts.

I INTRODUCTION

Constitutionalism can sometimes struggle to know what to do with ‘the

people’ once the constitutional text is written. They are sovereign,

certainly, and thus must underwrite the constitutional drafting in some

way, but what is their role thereafter except to be told what they have

committed themselves to, and to obey?

In the extra-curial writings of the late Chief Justice Langa there are,

across the years, a series of brief but highly suggestive references to the

people whose full meaning is, I think, deeply signif‌icant but not immedi-

ately apparent. Their brevity is part of their suggestiveness: they are not

just token references, and they are not the sort of thing one would say at

all unless one had in mind something deeper, a resistance to the idea that

the people’s role in constitutionalism is conf‌ined to being a collective

sovereign with a capital letter whose power they embody but do not

really exercise.

* Senior Researcher, Institute for International and Comparative Law in Africa, University

of Pretoria; BA (Hons) LLB (Witwatersrand)LLM JSD (Yale). I am grateful to Michael Bishop

and Alistair Price for organisingsuch a worthy event, and to Michaela Hailbronner, conference

participants and two anonymous reviewers for their comments and reactions. The usual

disclaimers apply.

75

2015 Acta Juridica 75

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