11
Interpretation
Janet Kentridge
Derek Spitz
Page
11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--1
THE INTERIM CONSTITUTION
11.2 Interpreting the Constitution as a whole . . . . . . . . . . . . . . . . . . . 11--1
(a) The Preamble and the Afterword . . . . . . . . . . . . . . . . . . . . 11--1
(b) The signed text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--2
(c) Definitions and interpretation . . . . . . . . . . . . . . . . . . . . . . 11--3
(d) Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--5
11.3 Interpreting the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . 11--6
(a) Section 35(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--6
(b) Section 35(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--8
(c) Section 35(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--9
11.4 Differences between statutory interpretation and constitutional
interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--10
11.5 Differences between interpreting the Bill of Rights and the rest of the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--14
11.6 Supremacy of the Constitution . . . . . . . . . . . . . . . . . . . . . . . . 11--16
11.7 Theories of interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 11--17
(a) Originalist interpretation: the primacy of drafters’ intent . . . . . . . . 11--17
(b) Political process theory: constitutional review to remedy dysfunctions
in the political process . . . . . . . . . . . . . . . . . . . . . . . . . 11--21
(c) Value-based interpretation: upholding individual rights in the forum
of principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--23
11.8 Developing a purposive approach to interpretation . . . . . . . . . . . . . 11--25
11.9 The pressures of the text . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--28
11.10 The structure of constitutional interpretation: two-stage analysis . . . . . . 11--31
(a) Stage One: the content of the right . . . . . . . . . . . . . . . . . . . 11--32
(b) Stage Two: limitation of rights . . . . . . . . . . . . . . . . . . . . . 11--33
(c) Onus and standard of proof at each stage . . . . . . . . . . . . . . . . 11--34
[REVISION SERVICE 5, 1999]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
Page
11.11
11.12
11.13
11.14
11--ii
THE FINAL CONSTITUTION
The importance of the certification judgments . . .
Interpreting the Constitution as a whole . . . . . . .
(a) The Preamble . . . . . . . . . . . . . . . . . .
(b) The signed text . . . . . . . . . . . . . . . . .
(c) Definitions and interpretation . . . . . . . . . .
(i) The presumption of constitutionality . . .
(ii) International law . . . . . . . . . . . . .
(iii) Definitions . . . . . . . . . . . . . . . .
(iv) Interpretation of existing legislation . . .
(d) Drafting history . . . . . . . . . . . . . . . . .
(e) Implied provisions . . . . . . . . . . . . . . . .
The Bill of Rights . . . . . . . . . . . . . . . . . .
Two-stage analysis under the final Constitution . . .
(a) Stage One ---- the content of the right . . . . . .
(b) Stage Two ---- limitation of rights . . . . . . . .
(c) Onus and standard of proof at each stage . . . .
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11--35
11--37
11--37
11--37
11--37
11--37
11--38
11--39
11--39
11--39
11--40
11--41
11--42
11--42
11--46
11--46
[REVISION SERVICE 5, 1999]
INTERPRETATION
11.1 INTRODUCTION
REVISION SERVICE 5, 1999
1This chapter begins with a discussion of what the interim Constitution itself explicitly says
about interpretation.1 It discusses the provisions of the interim Constitution which are
concerned with the interpretation of the Bill of Rights and those which deal with the
interpretation of the Constitution as a whole. It considers what the interim Constitution says
about statutory interpretation, and how this may have changed the approach to statutory
interpretation which has prevailed until now. This leads to a broader consideration of the basic
differences between constitutional and statutory interpretation. The question of the differences between interpreting the Bill of Rights and interpreting the rest of the Constitution is
then briefly revisited. The next question considered is the implications of constitutional
supremacy, and the place and meaning of judicial review of legislation in a democratic
society. Various interpretative solutions to the puzzle of the power of unelected judges in a
constitutional democracy are outlined. The conclusion reached is that the purposive, valuebased approach embraced by the South African courts is the soundest in principle and in
practice. The implications of this approach for the structure of constitutional analysis are
then examined.2 The last four sections of the chapter consider questions of interpretation in
relation to the final Constitution.3
THE INTERIM CONSTITUTION
All references to the Constitution, sections, Chapters, and Schedules in this part of
this chapter, from § 11.2 up to and including § 11.10(c), must be taken as references to
the interim Constitution unless another Constitution or statute is specifically referred to.
11.2 INTERPRETING THE CONSTITUTION AS A WHOLE
(a)
The Preamble and the Afterword
The Preamble sets the tone of the Constitution as a whole. The Preamble speaks of the need
to create a new social order within South Africa, a social order predicated on equality and
fundamental human rights and freedom. The new constitutional state thereby envisaged will
be regulated by a Constitution drawn up by the elected representatives of the South African
people. In the interim period during which the final Constitution was being formulated the
Constitution made provision for the promotion of national unity and the restructuring and
continued governance of South Africa.
These themes are reiterated in an Afterword headed ‘National Unity and Reconciliation’,
which appears at the end of the Constitution.4 The Afterword locates this Constitution in a
1
Constitution of the Republic of South Africa, Act 200 of 1993, hereafter referred to as ‘the interim Constitution’,
or ‘IC’.
2
The authors would like to thank Stu Woolman for his extensive contribution to developing the ideas articulated
in this Chapter.
3
Constitution of the Republic of South Africa, Act 108 of 1996, hereafter referred to as ‘the final Constitution’,
or ‘FC’.
4
On the status of the Afterword, see Azanian People’s Organisation (AZAPO) v President of the Republic of
South Africa 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at paras 12--14.
[REVISION SERVICE 5, 1999]
11--1
CONSTITUTIONAL LAW OF SOUTH AFRICA
particular historical context ---- the demise of a brutal, inhumane and unjust regime and the
birth of a new order based on the values of humanity (ubuntu) and social justice. Like the
Preamble, the Afterword to the Constitution sets out the goals of the Constitution and makes
clear the bridging function of the enactment.1 Apart from describing the functions which the
Constitution is required to fulfil, the Afterword provides a clear statement of the values
underlying the Constitution. This means that in interpreting any section of the interim
Constitution the historical context of the Constitution and the commitments which it makes
to nation building, reconciliation, reparation and reconstruction must be taken into account.
2 The importance of the Preamble and the Afterword to the Constitution as statements of
those values which are to inform the entire exercise of constitutional interpretation has been
acknowledged by the courts.2
(b)
The signed text
The Afrikaans text of the Constitution was signed by the State President and assented to on
25 January 1994. For as long as English and Afrikaans were the two official languages of
the Republic of South Africa all statutes were drafted in both English and Afrikaans. The
State President would sign the Afrikaans text of one statute and the English text of the next.3
So it came about that the President signed the Afrikaans text of Act 200 of 1993. It has long
been a rule of statutory interpretation in South Africa that, in cases of doubt, where the sense
of the Afrikaans word used differs from the English, the sense conveyed by the signed text
is definitive.4
1
Chaskalson P has drawn attention to the fact that the interim Constitution proclaims itself to be ‘an historic
bridge’, and not a final destination. It is not simply a bridge from the apartheid Constitution of the past to the present,
governed by the interim Constitution. It is also an historic bridge from the present to the future, which will be
governed by the new Constitution (Executive Council, Western Cape Legislature, & others v President of the
Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 37.
2
It is a well-established principle of common law that reference to the preamble to a statute is a permissible, if
limited, guide to the meaning of that statute: Mathebe v Regering van die Republiek van Suid Afrika en andere 1988
(3) SA 667 (A) at 689D--692D; Kauesa v Minister of Home Affairs & others 1995 (1) SA 51 (Nm) at 81C--82C,
1995 (3) BCLR 1 (Nm); G E Devenish Interpretation of Statutes (1992) 102--5; Lucas Cornelius Steyn Die Uitleg
van Wette 5 ed (1981) 145--6. By virtue of s 232(4), the portion of the interim Constitution headed ‘National Unity
and Reconciliation’ (sometimes dubbed the ‘post-amble’) does not have a lesser status than any other part of the
Constitution and is deemed to form part of the substance of the Constitution. Section 232(4) is considered further
below, § 11.2(c). The Preamble and Afterword have figured in many of the cases in which Chapter 3 has been
judicially considered. See in particular S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665
(CC) at paras 262--4 (Mahomed J) and 363 (Sachs J); S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR
793 (CC) at para 112 (Sachs J); Khala v Minister of Safety and Security 1994 (4) SA 218 (W) at 221F--G, 1995 (2)
BCLR 89 (W); Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 632A--G, 1995 (1) BCLR
75 (E); Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 597G--598B; Du Plessis v De Klerk 1996 (3)
SA 850 (CC), 1996 (5) BCLR 658 (CC) paras 75, 123, 125--6.
3
This practice appears to have continued thus far.
4
See H R Hahlo & Ellison Kahn The South African Legal System and Its Background (1973) 193--7; Devenish
Interpretation of Statutes 144--55. The requirement that statutes be published in English and Afrikaans, that one be
signed by the president, and that the signed text would prevail in the event of a conflict between the two derives
originally from s 67 of the South Africa Act of 1909 (UK). This was repealed by the 1961 Constitution (Act 32 of
1961) and replaced by s 65 of that Act. The section was in turn replaced by s 35 of Act 110 of 1983, the previous
Constitution, which was repealed in its entirety by the 1993 Constitution (cf s 230(1) read with Schedule 7). There
[continued on page 11--3]
11--2
[REVISION SERVICE 5, 1999]
INTERPRETATION
In fact, though, the Constitution was drafted in English and as a matter of accuracy the
English text should be the decisive one as between the English and Afrikaans in cases of doubt.
Hence s 15 of the Constitution of the Republic of South Africa Amendment Act 2 of 1994 provided:
‘Notwithstanding the fact that the Afrikaans text of the principal Act is the signed text, the English
text of that Act shall, for the purposes of its interpretation, prevail as if it were the signed text.’1
REVISION SERVICE 2, 1998
3 Where there is no conflict between the English and the Afrikaans version, and an
ambiguity in one text can be resolved with reference to the unambiguous words in the other
text, the latter, unambiguous meaning should be adopted.2 This rule of interpretation applies
equally to the interpretation of the Constitution.3
(c)
Definitions and interpretation
The definitions of the Constitution are contained in s 233. In general this section is concerned
mainly with terminology used in the Constitution.4 Certain terms used in the Constitution
are not explicitly defined, for example the term ‘Act of Parliament’. In the case of Zantsi v
The Council of State (Ciskei) & others the Constitutional Court unanimously held that the
term ‘Act of Parliament’ as used in those sections of the Constitution concerned with the
jurisdiction of the Supreme Court included Acts of the Parliament of the Republic of South
Africa passed before and after the coming into effect of the Constitution, but excluded laws
passed by the legislatures of the four nominally independent homelands.5 In reaching this
are now eleven official languages instead of two, and nothing has replaced the provisions of s 35 of the 1983
Constitution. There no longer appears to be a requirement that legislation is published in English and Afrikaans,
nor any law requiring that the signed text should prevail in the event of conflict. Section 3(2) of the Constitution
provides that ‘[r]ights relating to language and the status of languages at the commencement of this Constitution
shall not be diminished’. It is submitted that, in the context of the section as a whole, this cannot be taken to mean
that the requirements of s 35 of the 1983 Constitution have survived the demise of the provision itself.
1
Since the coming into effect of the 1993 Constitution, and the effective repeal of the 1983 Constitution, the
rule embodied in s 35 of the 1983 Constitution (described above, 11-2n3) is defunct. The need for the passage of
this particular amendment is therefore unclear. The amendment, to which the President assented on 2 March 1994,
may have been effected because the 1993 Constitution was passed while the 1983 Constitution, and hence s 35, was
still in force. Certain sections of the interim Constitution came into operation before 27 April 1995 (cf s 249(3), s
251). Hence it may have been necessary to clarify which text prevailed during the interregnum. Alternatively, the
amendment may be the product of force of habit (or caution as to the effect of s 3(2) of the Constitution). (On the
effect of s 3(2) see below, Currie ‘Official Languages’ § 37.4.) The amendment appears not to have been before
Froneman J when he referred to the Afrikaans text, which he noted was the signed text, in interpreting the words
‘law or provision’ as used in IC s 103 (Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at
636C--F), 1995 (1) BCLR 75 (E).
2
S v Maroney 1978 (4) SA 389 (A) at 409.
3
Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) para 44; cf para 47.
4
Inter alia the section provides that the term ‘organ of state’ includes any statutory body or functionary
(subsec (1)(ix)). Subsection (3) provides that the term ‘in consultation with’ means that a decision cannot be taken by
the party required to consult without the approval of the party with whom it is required to consult. Subsection (4)
provides that the term ‘after consultation with’ means that the person required to consult must consult in good faith
and must give serious consideration to the views of the party whom she or he is required to consult, the implication
being that the approval of the consultee is not required.
5
1995 (4) SA 615 (CC). Hence local and provincial divisions of the Supreme Court have jurisdiction to inquire
into the constitutionality of laws passed by the legislatures of the territories which were known as Transkei,
Bophuthatswana, Venda and Ciskei. They do not, however, have jurisdiction to inquire into the constitutionality of
legislation passed by the Parliament of the Republic of South Africa either before or after the commencement of
the Constitution (Zantsi at paras 40--1).
[REVISION SERVICE 2, 1998]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
conclusion Trengove JA was aided by the definition of the words ‘law’ and ‘parliament’ in s
2 of the Interpretation Act 33 of 1957.1 It therefore seems that, even though the Constitution
is ‘no ordinary statute’,2 but is the supreme law of the land, it is one of the laws to which the
Interpretation Act applies.3
Section 232 of the Constitution is the interpretation section. This is an important section
owing to the potential for confusion engendered by the interim nature of the Constitution.
With the coming into force of the Constitution, both the legal and the territorial boundaries
of South Africa shifted. Yet the terrain, both geographical and legal, on to which these new
boundaries were marked remained much the same. The new provinces are an amalgamation
of the territory of what was legally defined as the Republic of South Africa prior to 27 April
1994 and the territories of what were up to that date the nominally independent and
self-governing territories. Similarly the Constitution, the fundamental law of the land, was
superimposed on existing law and legislation.
4 Section 232(1) deals with how terms such as ‘Republic’, ‘State President’, and ‘Administrator’, as used in other laws,4 should be construed in the light of the changes brought about
by the Constitution.
Section 232(3) provides:
‘No law shall be constitutionally invalid solely by reason of the fact that the wording used is prima
facie capable of an interpretation which is inconsistent with a provision of this Constitution,
provided such a law is reasonably capable of a more restricted interpretation which is not
inconsistent with any such provision, in which event such law shall be construed as having a
meaning in accordance with the said more restricted interpretation.’
Section 232(3) confers upon laws a presumption of constitutional validity. It provides that
where a law is capable of differing interpretations, one of which may be inconsistent with
any provision of the Constitution, and another which is consistent with the Constitution, then
the latter is to be preferred. That then becomes the meaning of the law in question.
The effect of this provision appears to be that laws which have hitherto been interpreted
in ways which would lead to their infringing the Constitution ought now, where possible, to
be interpreted so as to comport with the requirements of the Constitution. Where, however,
an enactment infringes the Constitution on any sensible interpretation, that enactment is
invalid.5 The terms of s 232(3) suggest that if there is a reasonable interpretation available
whereby the law in question is constitutional, then that interpretation should be adopted ---even if that interpretation was explicitly rejected in the past.6
1
‘Law’ is there defined as ‘any law, proclamation, ordinance, Act of Parliament or other enactment having
the force of law’. ‘Parliament’ is defined as ‘the Parliament of the Republic’; cf Zantsi at paras 36--7.
2
S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 15 (Chaskalson P).
See further below, § 11.4.
3
Cf ss 1 and 2 of the Interpretation Act 33 of 1957.
4
This refers to all laws which were in force in any area of the national territory prior to the coming into effect
of the Constitution. In terms of s 229 of the Constitution such laws remain in force until they are repealed or amended
by a competent authority.
5
See S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at para 28.
6
Compare Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux
NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18.
11--4
[REVISION SERVICE 2, 1998]
INTERPRETATION
Section 232(4) provides:
‘In interpreting this Constitution a provision in any Schedule, including the provision under the
heading ‘‘National Unity and Reconciliation’’, to this Constitution shall not by reason only of
the fact that it is contained in a Schedule, have a lesser status than any other provision of this
Constitution which is not contained in a Schedule, and such provision shall for all purposes be
deemed to form part of the substance of this Constitution.’
In general the Schedules are concerned with technical matters.1 Schedule 4 contains the
Constitutional Principles, which lay down the parameters within which the final Constitution
must be drafted. The Principles provide a framework for the new constitutional dispensation
in South Africa. They also articulate the values to which those who govern South Africa now
and in the future are pledged to adhere. Arguably, by virtue of s 232(4), the Constitutional
Principles can inform our understanding of the provisions of the Constitution since reference
to other relevant portions of an instrument is often important in interpreting any particular
provision. It is clear, however, that s 232(4) does not mean that the Constitutional Principles
are themselves substantive constitutional rights, the contravention of which gives rise to a
claim in terms of the Constitution. It has been held that the statement in s 232(4) that the
Schedules are for all purposes deemed to form part of the substance of the Constitution
‘relates to their status and not to their function or operation’.2
(d)
Drafting history
5 he Constitution was forged through the Multi-Party Negotiating Process (MPNP). This
T
process was informed by the reports of a number of technical committees.3 The final draft
which emerged from the MPNP was, with minor amendments, adopted by Parliament. In a
careful consideration of the role of its legislative history in the interpretation of the Constitution, Chaskalson P has pointed out that the drafts of the reports of the technical committees
are equivalent to the travaux préparatoires upon which tribunals interpreting international
conventions are permitted to rely.
‘Such background material can provide a context for the interpretation of the Constitution and,
where it serves that purpose, I can see no reason why such evidence should be excluded. The precise
nature of the evidence, and the purpose for which it may be tendered, will determine the weight to
be given to it.’4
1
Schedule 1, for example, is concerned with the definition of the provinces; Schedule 2 with the system for
election of national assembly and provincial legislatures; Schedule 3 with the oaths of office and solemn affirmations
to be taken by the President, Deputy Presidents, members of the national assembly, judges and so on; Schedule 5
sets out the procedure for the election of the President; Schedule 6 the legislative competences of the provinces;
Schedule 7 the legislation repealed by the Constitution.
2
Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 41. Chaskalson P examines the role and status of the
Constitutional Principles at paras 24--41. Cf Premier, KwaZulu-Natal, & others v President of the Republic of South
Africa & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC) at para 12. The status of the ‘afterword’ in the
light of s 232(4) is discussed by Mahomed J in Azanian People’s Organisation (AZAPO) v President of the Republic
of South Africa 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at para 14.
3
For a participant’s perspective on the formulation of the bill of rights, see Lourens du Plessis & Hugh Corder
Understanding South Africa’s Transitional Bill of Rights (1994).
4
S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 17 (Chaskalson P).
[REVISION SERVICE 2, 1998]
11--5
CONSTITUTIONAL LAW OF SOUTH AFRICA
The judge was careful to point out that the actual intentions of individual actors in the
process of adopting the Constitution are not determinative of the meaning of the Constitution.
Especially in view of the fact that the Constitution is a product of a multiplicity of actors,
the comments of any of those involved in the process, no matter how prominent a role they
might have played, are to be treated with circumspection.1 The judge distinguished, however,
between comments such as these and other materials throwing light on the purposes sought
to be achieved in the drafting process:
‘Background evidence may, however, be useful to show why particular provisions were or were not
included in the Constitution. It is neither necessary nor desirable at this stage in the development
of our constitutional law to express any opinion on whether it might also be relevant for other
purposes, nor to attempt to lay down general principles governing the admissibility of such evidence.
It is sufficient to say that where the background material is clear, is not in dispute, and is relevant
to showing why particular provisions were or were not included in the Constitution, it can be taken
into account by a court in interpreting the Constitution’.2
11.3 INTERPRETING THE BILL OF RIGHTS
6 ection 35, the final section of Chapter 3 of the Constitution, deals specifically with the
S
interpretation of the Bill of Rights.
(a)
Section 35(1)
‘In interpreting the provisions of this Chapter a court of law shall promote the values which
underlie an open and democratic society based on freedom and equality and shall, where applicable,
have regard to public international law applicable to the protection of the rights entrenched in this
Chapter, and may have regard to comparable foreign case law.’
Section 35(1) is an exhortation to the courts to seek and discover the values underlying the
Bill of Rights in interpreting its provisions. This subsection is heavily suggestive of the
correct jurisprudential approach to the interpretation of the Constitution. The range of
jurisprudential theories of constitutional interpretation is discussed below, § 11.7. There it is argued
that, as a matter of principle and coherence, a value-based analysis is the best way to proceed in
interpreting the Constitution. Section 35(1) is an explicit textual invitation to adopt that approach
to interpretation.
1
S v Makwanyane at para 18 (Chaskalson P).
2
S v Makwanyane at para 19 (Chaskalson P). The implications of this conclusion are considered further below,
§ 11.7(a). In reaching this conclusion Chaskalson P reviewed the status of legislative history in the interpretation
of statutes in South Africa and other Commonwealth jurisdictions. He noted that the scope of what is admissible
by way of background materials has in recent years been extended in England, New Zealand and Australia, but he
pointed out that the question of whether South Africa should follow that trend was not directly in issue because the
court was engaged in the interpretation of a Constitution, which is ‘no ordinary statute’ (at para 15). Chaskalson P
proceeded to consider the use of background materials in the interpretation of the Constitutions of other jurisdictions
in which the Constitution is the supreme law (at para 16). See also Du Plessis v De Klerk 1996 (3) SA 850 (CC),
1996 (5) BCLR 658 (CC) at para 56 (per Kentridge AJ), para 84 (per Mahomed J); Ex parte Attorney-General,
Namibia: In re The Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8)
BCLR 1070 (NmS) at 1080D--J.
11--6
[REVISION SERVICE 2, 1998]
INTERPRETATION
As we argue below,1 the approach to constitutional interpretation which says that the
meaning of the Constitution is to be found in the intention of its drafters is fundamentally
flawed. Nor is the meaning of the Constitution to be found in a simple decoding of the written
text. Rather, the meaning of the Constitution is to be determined with reference to its
underlying values and commitments.2 Section 35(1) appears to endorse this view.3 Note that
6B
6A
1
Below, § 11.7(a).
2
The argument here is that the values underlying the Constitution play a vital role in the interpretation of the
text. The text itself, however, remains important. As Kentridge JA pointed out in S v Zuma & others 1995 (2) SA
642 (CC), 1995 (4) BCLR 401 (CC) at para 17: ‘I am well aware of the fallacy of supposing that general language
must have a single ‘‘objective’’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and
moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might
wish it to mean. We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the
language of which is to be respected. If the language used by the lawgiver is ignored in favour of a general resort
to ‘‘values’’ the result is not interpretation but divination.’
3
There is something of an irony in the fact that the plain meaning of s 35(1) can be said to support a value-based
approach to the interpretation of the bill of rights. It is similarly ironic that s 35(1) appears to articulate the drafter’s
intention that the value-based approach should prevail over that which accords primacy to the intention of the drafter.
The effect of s 35(1) seems to be that even judges who are minded to interpret the bill of rights according to the
plain meaning or the drafter’s intention theory are forced to take into account the underlying values of the
Constitution in interpreting the provision in question.
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the phrase used in s 35(1) ---- ‘an open and democratic society based on freedom and equality’
---- echoes s 33(1)(a), which states that the rights contained in Chapter 3 can only be limited
by a law of general application which is both reasonable and justifiable in an open and
democratic society based on freedom and equality and which does not negate the essential
content of the right in question. Hence both s 33(1) and s 35(1) exhort the courts to seek and
discover the value basis of the Bill of Rights in interpreting its provisions.1 The obligation
which s 35(1) places upon courts interpreting the Constitution to promote the values of an
open and democratic society based on freedom and equality applies both to the interpretation
of the fundamental right itself and to the evaluation of any limitation against the criteria laid
down in s 33(1).2
7 Judges interpreting the Bill of Rights are also enjoined to have regard to public international
law applicable to the protection of the rights entrenched in the Chapter.3 It is interesting to note
that this exhortation is cast in peremptory terms. This brings public international human rights
law into the very centre of human rights adjudication in South Africa. This is likely to be particularly
important in the early days of adjudicating under the Bill of Rights since there is no local body
of precedent in the area on which to draw.4 Similarly important is the learning to be found in
comparable foreign case law. While judges are not obliged to have regard to such comparable
foreign case law, they are able to do so in terms of s 35(1).5 This allows them to look at the
law of human rights as it is developing in other jurisdictions in Southern Africa which have
recently adopted bills of rights, such as Namibia and Zimbabwe, and also to consider the law
of those countries on whose bills of rights the drafters of the Constitution drew in formulating
the provisions of Chapter 3, such as the United States, Canada and Germany.
1
As is considered further below, § 11.10, constitutional analysis proceeds in two stages. The first is concerned
with whether the law or act under review impinges upon a right. This inquiry involves the definition of the right,
the delimitation of its boundaries. If the law or act subject to complaint encroaches on those boundaries, the inquiry
proceeds to the second stage, where the legitimacy of any restriction on the right is assessed. That the words ‘open
and democratic society based on freedom and equality’ are used in s 35(1) and s 33(1) is significant, for it underlines
the fact that the same values inform both phases of the inquiry.
2
Coetzee v Government of the Republic of South Africa & others; Matiso v Commanding Officer, Port Elizabeth
Prison, & others 1995 (4) SA 631 (CC) at para 11 (Kriegler J, for the majority). On the contiguity of the two stages
of inquiry, see the remarks of Sachs J in his separate judgment concurring in the order in the same case at paras 45--6.
See further below, § 11.10.
3
See below, Dugard ‘Public International Law’ ch 13. See also John Dugard ‘The Role of International Law in
Interpreting the Bill of Rights’ (1994) 10 SAJHR 208, esp at 211--14.
4
Cf S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 34--6.
5
S v Makwanyane at paras 37--9. Foreign authorities are not, however, to be imported wholesale into local
constitutional jurisprudence regardless of their suitability. See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4)
BCLR 449 (CC) at paras 132--3 (Kriegler J); Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658
(CC) at para 127 (per Kriegler J); Executive Council, Western Cape Legislature, & others v President of the Republic
of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 61; Ex parte Speaker of the
National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education
Policy Bill 83 of 1995 1996 (3) SA 289 (CC), 1995 (4) BCLR 518 (CC) at para 22; Ferreira v Levin NO & others
1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 101; Thomson Newspapers Ltd v Director of Investigation
and Research (1990) 67 DLR (4th) 161 at 279f--g. Compare O Kahn Freund ‘On the Uses and Misuses of
Comparative Law’ (1974) 37 Modern LR 1.
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(b)
Section 35(2)
‘No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid
solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this
Chapter, provided such law is reasonably capable of a more restricted interpretation which does not
exceed such limits, in which event such law shall be construed as having a meaning in accordance
with the said more restricted interpretation.’
8 he similarity between s 35(2) and s 232(3) is clear, and the effect of both these subsections
T
is broadly similar.1 Section 35(2) effects a change of emphasis to the standard rules of
statutory interpretation. According to these rules, the object of the interpretive exercise is to
ascertain the intention of the legislature. The ‘golden rule’ of statutory interpretation is that
the judge must give effect to the ordinary meaning of the clear wording of the statute unless
this results in patent absurdity, in which case the court may resort to other clues to the
legislative intention.2 Resort to devices such as restrictive interpretation and purposive
interpretation is allowed also where the words used are themselves ambiguous.3
Section 35(2) of the Constitution provides that the prima facie obvious meaning of the
words used in the text should not necessarily prevail. If the plain meaning of a statute suggests
that it is unconstitutional, the court is required to consider whether the language permits an
interpretation which would accord with the requirements of the Bill of Rights.4 If an
alternative interpretation is available which does accord with the constitution, then that
interpretation is to be preferred.
The effect of s 35(2) is to require every statute to be read, if possible, in such a manner
that it comports with the requirements of the Constitution.5 Hence even adjudicators in
1
S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at para 26.
2
Union Government (Minister of Finance) v Mack 1917 AD 731 at 739; Pick ’n Pay Retailers (Pty) Ltd v Minister
of Mineral and Energy Affairs 1987 (2) SA 865 (A) at 876D; Public Carriers Association & others v Toll Road Concessionaries
(Pty) Ltd & others 1990 (1) SA 925 (A) at 942I--J; Boland Bank Ltd v The Master & another 1991 (3) SA 387 (A).
3
See Union Government (Minister of Finance) v Mack at 748. See the dictum by Smalberger JA in Public
Carriers Association & others v Toll Road Concessionaries (Pty) Ltd & others at 943I--944B.
4
A rule of interpretation originating in Roman law and adopted into our common law accords broadly with the
presumption of constitutionality embodied in s 35(2). The rule provides ‘in ambigua voce legis ea potius accipienda
est significatio, quae vitio caret’. Where a statutory provision is ambiguous, that meaning which avoids invalidity of the
provision in question is to be preferred. See Ynuico Ltd v Minister of Trade and Industry & others 1995 (11) BCLR
1453 (T), upheld in Ynuico Ltd v Minister of Trade and Industry & others 1996 (3) SA 989 (CC), 1996 (6) BCLR 798 (CC).
We submit, however, that, unlike the common-law rule of interpretation, the applicability of s 35(2) does not depend
upon first establishing that the relevant statutory provision is ambiguous or would lead to absurd consequences. See
paras 59--64 of Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) per Ackermann J.
5
See S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC); Coetzee v Government
of the Republic of South Africa & another 1995 (4) SA 631 (CC), 1995 (12) BCLR 1579 (CC) (where it is possible
to do so, a law should be ‘read down’ so that a more restricted interpretation is applied which comports with
constitutional requirements). Thus, for example, in Govender v Minister of Safety and Security 1999 (5) BCLR 580
(D) at 594--5 Booysen J applied IC s 35(2) in interpreting s 49(1) of the Criminal Procedure Act 51 of 1977. The
section deals with the use of force and subjects its legality to a test of reasonableness. The court read the section to
incorporate an assessment of proportionality as this concept is understood under the limitation clause of the
constitution. The court therefore concluded that the section did not conflict with the constitution. The legality of
the use of force would be determined on a case-by-case basis where an assessment would be made, against the
background of the Constitution, of whether it was the minimum force possible, reasonable, necessary and
proportionate in the circumstances. Cf Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd 1984 (2)
SA 778 (ZS) at 783A--D, cited in Gilbert Marcus ‘Interpreting the Chapter on Fundamental Rights’ (1994) 10 SAJHR
92 at 96.
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tribunals which do not have the jurisdiction to declare a statute invalid are required to consider
statutes in the light of the Bill of Rights. Where a plausible constitutional argument is raised
in relation to a statute an adjudicator cannot decline to consider the Constitution simply
because she or he is not able to decide upon the constitutionality of the Act as a whole. If
there is an interpretation available which will bring the statute or the statutory provision under
consideration within the constitutional fold, then the adjudicator must consider the constitutional argument to that effect. As we have argued above in relation to s 232(3), this may mean
that an adjudicator is required to depart from the hitherto accepted interpretation of a statute
in favour of an alternative interpretation which comports with the requirements of the Bill
of Rights, provided that the statute in question is reasonably capable of bearing the latter
meaning.
8A
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Section 35(2) does two things: first, as we have seen, it effects an important change to the
ordinary canons of statutory interpretation. Secondly, it effects a subtle but important change
to the doctrine of precedent. Points which might have been settled before the coming into
effect of the Bill of Rights are now open to review in the light of the Bill of Rights.1 This is
discussed further below.
(c)
Section 35(3)
‘In the interpretation of any law and the application and development of the common law and
customary law, a court shall have due regard to the spirit, purport and objects of this Chapter.’
REVISION SERVICE 2, 1998
9The same process of exploration and articulation of the values of the Bill of Rights which
must be conducted in reference to the interpretation of the Bill of Rights itself is to extend
to the interpretation of any law. It was held in Du Plessis v De Klerk that s 35(3) introduces
the indirect application of the Bill of Rights to private law.2 Courts are enjoined to interpret
statutes and common-law principles in the light of the values underlying the Bill of Rights.
These values and principles are also to inform the application and development of the
common law and customary law.3
Section 35(3) has important implications for adjudication, even where the Constitution
itself is not directly in issue. Even where the litigants before the court do not claim the
infringement of a fundamental right, and even where the Constitution may not be of direct
application to the dispute between the parties, its principles must inform the way in which
the matter is determined.4 The extent to which the substantive values embodied in Chapter
3 are now required to inform the interpretation, development and application of every branch
of the law means that points of law, including statutory, common and customary law, hitherto
regarded as settled, now stand to be re-evaluated.5
1
See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO &
others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18.
2
1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 60. The implications of the indirect application of
the bill of rights are considered further by Kentridge AJ at paras 61--6. See also Mahomed J at paras 86--7; cf
Gardener v Whitaker 1996 (6) BCLR 775 (CC) esp at para 16; Holomisa v Argus Newspapers Ltd 1996 (2) SA 588
at 596D--598G and 603E--I.
3
In Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) para 63 the words ‘a court’ in s
35(3) were interpreted to mean ‘all courts’, including the Appellate Division. Compare paras 141--3 (Kriegler J
dissenting); see also Gardener v Whitaker 1996 (6) BCLR 775 (CC) at para 16. Writing for the entire court in Nel v Le
Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC), Ackermann J held that the words referred also
to magistrates’ courts (para 18; see also paras 8--9). Mokgoro J emphasized, in a separate concurring judgment in
Du Plessis v De Klerk, that s 35(3) assigns to courts an affirmative duty to apply and develop both common law
and customary law so as to imbue them with the values embodied in Chapter 3. Her judgment drew particular attention to
the need to develop customary law in light of such values. This issue was considered too at para 189 of Sachs J’s
judgment.
4
See Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at paras 86 (Mahomed J,
concurring), and 141--3 (Kriegler and Didcott JJ, dissenting). See Cameron J’s discussion of the effect of s 35(3) in
Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 598B--G, 603F--I, 1996 (6) BCLR 836 (W).
5
See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO &
others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18; Shabalala v Attorney-General (Transvaal)
1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at para 9; Holomisa v Argus Newspapers Ltd 1996 (2) SA
588 (W) at 603G--H, 1996 (6) BCLR 836 (W). The effect of the infusion of constitutional values into the common
law on the doctrine of stare decisis is a question of the proper interpretation of a common-law principle. As such,
it is a question which falls within the jurisdiction of the Supreme Court and not the Constitutional Court. See further
[continued on page 11--10]
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We submit, furthermore, that there may be important differences between the ‘interpretation’ and the ‘development’ envisaged by s 35(3). A rule of common law may trench upon a
fundamental right in a manner which is not amenable to mere ‘interpretation’. That rule may
require ‘development’, even far-reaching ‘development’, in order to render it consistent with
constitutional principles. We submit that the process of ‘interpretation’ referred to in s 35(3)
is similar to the process of reading down envisaged by the presumption of constitutionality
in s 35(2). In certain circumstances, by contrast, ‘development’ of the common law may
necessitate a process similar to the striking down of a statutory provision. This issue is
considered in the context of freedom of expression and the common law of defamation
below, § 20.8(b).
11.4 DIFFERENCES BETWEEN STATUTORY INTERPRETATION AND CONSTITUTIONAL
INTERPRETATION
10 there is a difference between statutory and constitutional interpretation is widely
That
acknowledged in cases on constitutional interpretation throughout the world. The Privy
Council decision in Minister of Home Affairs v Fisher, interpreting the Bermuda Constitution
of 1968, is a case in point.1 The question at issue was whether constitutional rights stated to
apply to ‘a child of a citizen of Bermuda’ included an illegitimate child. Had the Constitution
been an ordinary statute, then the presumption, pertaining to statutes concerning property,
succession and citizenship, that the word ‘child’ meant legitimate child unless there are clear
indications to the contrary, would have applied. The Privy Council held, however, that the
statutory presumption did not apply in interpreting the Constitution.2 The court noted that
the Constitution, as compared to other Acts of Parliament, had a number of special characteristics. The Constitution, in particular the Bill of Rights, was drafted in a broad and ample
style which laid down principles of width and generality. The Constitution was modelled on
the Bills of Rights of other countries and various international instruments for the protection
of human rights. It was therefore appropriate to apply to the Bill of Rights
‘a generous interpretation avoiding . . . ‘‘the austerity of tabulated legalism’’, suitable to give to
individuals the full measure of the fundamental rights and freedoms referred to’.3
above, Loots & Marcus ‘Jurisdiction’ ch 6. See also Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR
658 (CC) at paras 86 (Mahomed J), 172--4 (Mokgoro J). Where common-law rights have been recorded in the
Constitution the balances struck between them by the common law may now have to be reconsidered (per
Kentridge AJ at para 55; cf para 83 (Mahomed J)).
1
[1980] AC 319, [1979] 3 All ER 21, [1979] 2 WLR 889 (PC).
2
The question of whether the common-law presumption that statutes are not intended to be retroactive or
retrospective applied to the Constitution was considered by the Constitutional Court in S v Mhlungu & others 1995
(3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at paras 37--8 (Mahomed J), para 99 (Kriegler J), para 115 (Sachs J),
and paras 64--8 (Kentridge JA, dissenting). Sachs J questioned the usefulness of common-law presumptions in
interpreting the Constitution. See Thomson Newspapers v Canada (1990) 67 DLR (4th) 161 at 192 (Wilson J,
dissenting). See further below, § 11.5.
3
Minister of Home Affairs v Fisher [1980] AC 319 at 328H, [1979] 3 All ER 21, [1979] 2 WLR 889 (PC). This
dictum has been cited with approval in numerous cases on constitutional interpretation throughout the world, and
by the Constitutional Court in S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 14; and
see 651I. See also Attorney General v Moagi 1982 (2) Botswana LR 124 at 184; S v Marwane 1982 (3) SA 717 (A)
at 748--9; Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (NmS) at 361--2.
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The court pointed out, however, that this did not mean that no rules of law ought to apply
to the interpretation of a Constitution:
‘A Constitution is a legal instrument giving rise, amongst other things to individual rights capable
of enforcement in a court of law. Respect must be paid to the language which has been used and to
the traditions and usages which have given meaning to that language. It is quite consistent with this,
and with the recognition that rules of interpretation may apply, to take as a point of departure for
the process of interpretation a recognition of the character and origin of the instrument, and to be
guided by the principle of giving full recognition and effect to those fundamental rights and
freedoms with a statement of which a Constitution commences.’1
The court refers, in the passage quoted above, to ‘the character and origin of the
instrument’. This raises the question: what is the character of a Constitution and how does
it differ from other statutes? There are, of course, differences in the nature of the instruments
themselves and the way in which they are drafted. These are described by the court in Hunter
et al v Southam Inc:
10B
10A
1
Minister of Home Affairs v Fisher [1980] AC 319 at 329E--G, [1979] 3 All ER 21, [1979] 2 WLR 889 (PC),
cited with approval in S v Zuma & others at para 14. Although it does not expressly refer to the principle that respect
should be paid to the traditions and usages which have given meaning to the language used in the Constitution, Van
Dijkhorst J’s decision in Wittmann v Deutscher Schulverein, Pretoria, & others 1998 (4) SA 423 (T), 1999 (1) BCLR
92 (T) offers an interesting application of that principle. One of the issues which the court was required to determine
was the meaning of the phrase ‘state-aided institutions’ in IC s 14(2). IC s 14 deals with freedom of religion, belief
and opinion, and provides that ‘religious observances may be conducted at . . . state-aided institutions . . . provided
that . . . attendance at them is free and voluntary’. The court had to determine, inter alia, whether the German School
was a state-aided institution within the meaning of IC s 14(2). In giving meaning to the words ‘state-aided institution’
the court had regard to the history and usage of the words ‘state-aided schools’ in various South African education
statutes which predated the coming into force of the interim Constitution. The relevance of the decision for IC s 14
and FC s 15 is considered below, Smith ‘Freedom of Religion’ ch 19.
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‘The task of expounding a constitution is crucially different from that of construing a statute.
A statute defines present rights and obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye on the future. Its function is to provide a continuing
framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter
of rights, for the unremitting protection of individual rights and liberties. Once enacted, its
provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and
development over time to meet new social, political and historical realities often unimagined by its
framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions,
bear these considerations in mind.’1
REVISION SERVICE 3, 1998
11 The Hunter et al v Southam Inc dictum does more than simply describe the differences
between statutory and constitutional interpretation. It provides the rationale for such differences. It tells us that the function of a Constitution as a whole is ‘to provide a continuing
framework for the legitimate exercise of governmental power’. The task of a Bill of Rights,
it says, is ‘the unremitting protection of individual rights and liberties’.
The Constitution as a whole establishes the structure of government. It establishes and
allocates the powers of local, provincial and national government, and regulates the relationship between the three. It sets up the mechanisms of representative democracy at each of
these levels. It also creates and defines the powers of the legislature, the executive and the
judiciary, and deals with the separation of the powers of the three branches of government.
In general the Constitution regulates the conduct of government.2
More particularly, the South African Constitution is largely concerned with setting
out the mechanisms and processes by which governmental power is to be transferred from
the government of the past to the government of the future.3 Indeed, the primary function of
the Constitution is to provide a set of instructions to guide the transition from apartheid to
democracy. This is necessitated by the fact that the elections of 27 April 1994 did not
merely usher in a new government ---- they ushered in a whole new form and mode of
government.4
Chapter 3 of the Constitution, ‘Fundamental Rights’, is pertinently directed to the
relationship between government and private persons.5 It secures to all persons a zone of
autonomy into which neither the state, nor any other person under colour of law, may trespass.
It also gives to private persons certain rights which they can claim against the government.
1
Hunter et al v Southam Inc (1985) 11 DLR (4th) 641 at 649. A similar point is made by Mahomed AJ (as he
then was) in S v Acheson 1991 (2) SA 805 (NmS). See also Nyamakazi v President, Bophuthatswana 1992 (4) SA
540 (B), 1994 (1) BCLR 92 (B); Ntenteni v Chairman, Ciskei Council of State 1993 (4) SA 546 (Ck), 1994 (1)
BCLR 168 (Ck); The Attorney-General v Dow 1994 (6) BCLR 1 (Botswana) at 7B--9D, esp at 7B--G (per Amissah
JP) and at 40F--41I (per Aguda JA); De Klerk & another v Du Plessis & others 1995 (2) SA 40 (T) at 45E--I, 1994
(6) BCLR 124 (T); Swart v Minister of Home Affairs, Namibia 1998 (3) SA 338 (Nm) at 343G--344C.
2
See S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 15 (Chaskalson P).
3
See Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 7.
4
As mentioned above, this particular function of the interim Constitution is very clearly acknowledged in the
Preamble, which records that while the elected representatives of all the people of South Africa are engaged in the
process of adopting a new Constitution for the future, provision needs to be made ‘for the promotion of national
unity and the restructuring and continued governance of South Africa’.
5
See Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC).
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Rights, then, are claims by individuals or groups against the majority. The Bill of Rights
provides a mechanism by which individuals and minority groups can challenge the content
of decisions reached by a democratic majority, notwithstanding the fact that the process by
which those decisions were reached was democratic.1
12 Understanding the character of the Constitution as a whole and the Bill of Rights in
particular is necessary in order to comprehend the essential difference between statutory and
constitutional interpretation. A statute is an instrument by means of which a legislature
elected by a majority of citizens governs those citizens. It is a set of instructions from the
legislature to the officials who enforce the statute and to the citizens who are required to
comply with its provisions. When judges interpret statutes they are attempting to read and
understand those instructions, and to assist officials and citizens in understanding and
obeying those instructions. A judge interpreting a statute is engaged in the task of attempting
to determine legislative intent.2
Judges interpreting the Constitution are engaged in a different task altogether. They are
attempting to understand and to clarify the way in which government itself is required to
function. In doing so they are trying to establish a scheme or pattern of government which
comports with the values which the Constitution claims to uphold.3 More particularly, in
interpreting the Bill of Rights the courts are attempting to establish those values which allow
individuals to make claims against the majority. The Constitution gives to the courts the
power to strike down statutes which do not comply with the constitutional scheme. It fulfils
an entirely different institutional role from legislation. Unlike an ordinary statute, it is not
the voice of the people speaking through the legislature. Rather, it is the embodiment of a
social pact which acknowledges that democracy is something more than mere majority fiat;
that there are areas into which the majority may not trespass. These areas are the domain of
rights and the gatekeepers of this domain are the courts.4 The courts, when interpreting the
Constitution, are determining the way in which a commitment to a set of fundamental values
translates and applies in a specific context.
1
The democratic dilemma posed by this function of a bill of rights is considered below, § 11.6.
2
It is important here to distinguish between legislative intent in the institutional sense and legislative intention
in some sort of historical or psychological sense. Statutory interpretation ought not to be an exercise in attempting
to discern the actual intention of the particular persons who were involved in the passing of the Act in question.
Rather, it is an exercise in attempting to discover the institutional reasons for the passing of that Act. This
understanding of statutory interpretation accords with the standard rules and presumptions of statutory interpretation. The mischief rule, for example, seeks to discover the institutional intention behind the legislation by inquiring
into the problems or ‘mischief’ which the statute was calculated to remedy. Cf Aetna Insurance Co v Minister of
Justice 1960 (3) SA 273 (A) at 284H: ‘The real question that we have to decide is, what does the word mean in the
context in which we here find it, both in the immediate context of the subsection in which the word occurs and in
the general context of the Act, having regard to the declared intention of the act and the obvious evil that it is designed
to remedy.’ See also Jaga v Dönges NO & another; Bhana v Dönges NO & another 1950 (4) SA 653 (A) at 662--3,
esp at 662G--H. On the problems of originalism as an approach to constitutional interpretation, see below, § 11.7(a).
3
See S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 15 (Chaskalson P).
4
Cf De Klerk & another v Du Plessis & others 1995 (2) SA 40 (T) at 46D--G, 1994 (6) BCLR 124 (T).
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13 The differences between constitutional and statutory interpretation are addressed by
Froneman J in the case of Matiso v Commanding Officer, Port Elizabeth Prison, & another.1
Here the judge makes the point that although it seems to be widely accepted that there is a
difference between statutory interpretation and constitutional interpretation, it is important
for judges to be clear about why this is the case. This is particularly important, says the judge,
for judges who have been schooled in the Westminster system, wherein Parliament is
supreme.
‘In a constitutional system based on Parliamentary sovereignty it makes good sense to start
from the premise of seeking ‘‘the intention of the Legislature’’ in statutory interpretation, because
the interpreting judge’s value judgment of the content of the statute is, theoretically at least,
irrelevant . . . The interpreter’s notion of ascertaining ‘‘the intention of the Legislature’’ does not
apply in a system of judicial review based on the supremacy of the Constitution, for the simple
reason that the Constitution is sovereign and not the legislature. This means that both the purpose
and the method of statutory interpretation in our law should be different from what it was before
the commencement of the Constitution on 27 April 1994. The purpose now is to test legislation and
administrative action against the values and principles imposed by the Constitution. This purpose
necessarily has an impact on the manner in which both the Constitution itself and a particular piece
of legislation said to be in conflict with it should be interpreted. The interpretation of the Constitution
will be directed at ascertaining the foundational values inherent in the Constitution, whilst the
interpretation of the particular legislation will be directed at ascertaining whether that legislation is
capable of an interpretation which conforms with the fundamental values or principles of the
Constitution. Constitutional interpretation in this sense is thus primarily concerned with the
recognition and application of constitutional values and not with a search to find the literal meaning
of statutes.’2
This provides a particularly useful summary of the differences in the role of the judge
when interpreting a statute from when interpreting a Constitution, and the differences
between statutory interpretation before and after the coming into effect of the Constitution.
The Constitutional Court has recently had occasion to consider certain important differences between statutory and constitutional interpretation.3 Mahomed J pointed out that the
presumption that a statute does not operate retrospectively to affect pending proceedings
operates only if there is no contrary intention. The fundamental nature of the Constitution,
considered the judge, is itself an indication of such a contrary intention. Given that the
presumption is intended to protect against the invasion of rights, it is particularly inapplicable
to Chapter 3, which seeks to expand rather than to curtail rights.4 Kriegler J stated that
it would be inappropriate to invoke common-law interpretive presumptions against retroactivity and retrospectivity of statutory amendments when interpreting the Constitution. As
the supreme law, the Constitution does not fall to be interpreted along such lines.5 Sachs J
questioned the applicability of common-law presumptions in interpreting the Constitution.6
1
1994 (4) SA 592 (SE) at 596F--599C. The case concerned the constitutionality of those sections of the
Magistrates’ Courts Act 32 of 1944 which authorised the imprisonment of judgment debtors in certain circumstances.
Froneman and Melunsky JJ concluded that the relevant sections were unconstitutional. This finding was upheld by
the Constitutional Court in the case of Coetzee v Government of the Republic of South Africa; Matiso v Commanding
Officer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC).
2
1994 (4) SA 592 (SE) at 596F--599C.
3
S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).
4
S v Mhlungu & others at paras 37--8.
5
S v Mhlungu & others at para 99 (Kriegler J concurring in the result).
6
S v Mhlungu & others at para 115 (Sachs J).
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Kentridge JA, in his minority judgment, took the view that the presumption against retrospectivity and retroactivity was helpful in attempting to explain the purpose of s 241(8) of the
Constitution.1 He noted, however, that the terms of s 4(1) and s 7(2) indicate that Chapter 3
prima facie has effect from 27 April, regardless of the effect on vested rights. In that sense,
said the judge, the Constitution is retrospective.2
14 In practice the discernible differences between statutory and constitutional interpretation
may often be slight. The distinction between statutory and constitutional interpretation may
also become blurred. In Minister of Land Affairs & another v Slamdien & others3 the Land
Claims Court held that a purposive approach to statutory interpretation was required where
the statutory provisions in question were enacted because the Constitution specifically
required their enactment to give content to and protect fundamental rights, and where the
statutory provisions substantially retained the wording of the comparable constitutional
provision. Nevertheless, it is important to understand the difference in principle that underlies
the exercise in either case. The apparent similarity between the two tends to obscure the very
real and important differences between them.
11.5 DIFFERENCES BETWEEN INTERPRETING THE BILL OF RIGHTS AND THE REST
OF THE CONSTITUTION
A remaining question is whether there is any difference of principle between the interpretation of the Constitution as a whole and the interpretation of the Bill of Rights in particular.
We have shown that there is a difference of principle between the Constitution as a whole
and an ordinary piece of legislation. Nevertheless, it must be conceded that many parts of
the Constitution are technical instructions as to how government is going to run, rather than
lofty statements of principles and ideals. This point is made by Van Dijkhorst J in the case
of Kalla & another v The Master & others:4
‘Obviously, when one seeks to interpret the fundamental rights clauses of Chapter 3 . . . which set out
broad principles, this has to be done in the spirit of the Constitution. But surely not when one has to
determine whether Bloemfontein is the seat of the Appellate Division as provided for in s 106(2)?’5
1
S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at paras 64--8. See further below, § 11.9.
See also above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ § 6.2(e).
2
As indicated above, the justices of the Constitutional Court have emphasized on various occasions the
differences between a Constitution and an ordinary statute. In particular, the implications of the supremacy of the
Constitution for the application of principles of interpretation applying to ordinary statutes have been considered
(for example, the comments of Mahomed, Kriegler and Sachs JJ cited in the last three footnotes). It is interesting
that the justices nevertheless unanimously concurred in the view of Trengove JA in Zantsi v Council of State, Ciskei,
& others 1995 (4) SA 615 (CC) at paras 36--7 that the Interpretation Act is of application to the Constitution. See
further above, § 11.2(c). See also Executive Council, Western Cape Legislature, & others v President of the Republic
of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at paras 33, 49; Premier,
KwaZulu-Natal, & others v President of the Republic of South Africa & others 1996 (1) SA 769 (CC), 1995 (12)
BCLR 1561 (CC) at paras 18--20; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at
para 172.
3
1999 (4) BCLR 421 (LCC) at 421B--C.
4
1995 (1) SA 261 (T) at 268--9.
5
At 268G--H; cf the minority judgment of Schreiner JA in The Attorney-General v Unity Dow 1994 (6) BCLR
1 (Botswana) at 57I--58C.
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The judge makes the point that the Constitution ‘does not only deal with lofty ideals and
principles. It has many provisions on mundane matters.’1 He suggests that in relation to these
technical provisions in the Constitution the question remains as it always has been: what is
the intention of the legislature? ‘What did the draftsmen have in mind?’2
The primary aim in interpreting the more technical aspects of the Constitution is indeed
to work out what the scheme of government actually contemplated by the Constitution is.
The questions and answers involved in the inquiry are often mundane and matter of fact. For
14A
1
At 269B--C.
2
At 269C--D.
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a number of reasons, however, ascertaining the intention of the legislature is not the primary
object of the interpreter. First, the Constitution was the product of compromise and consensus
among negotiating parties who were not part of the legislature. The passing of the Constitution by Parliament was something of a formality. Secondly, given that the Constitution sets
down a pattern for government, it can hardly be said that it is the intention of the legislature
which falls to be determined. In any event, the interpretation of ordinary statutes is concerned
with the institutional rather than psychological intention of the legislature and reference to
‘the mind of the drafter’ should be understood only as a figure of speech.
15 It is clearly the case that the words of the Constitution are the first place to look in
attempting to discern its meaning.1 These words are not in themselves definitive, however.
It is also quite clear that the old rules of statutory interpretation and of interpretation in general
have not been rendered nugatory by the coming into effect of the Constitution.2 They, like
other principles of law which have hitherto governed our courts, ought not now to be ignored,
for they contain much of lasting value.3 Nevertheless, while the laws of the land may not in
general have been abrogated by the Constitution, the Constitution does provide an entirely
new legal foundation to the law of South Africa.4
Even when interpreting the more technical sections of the Constitution the object of the
court is to determine and to give effect to the values of the Constitution, obviously as
expressed in the actual wording used by the drafters of the Constitution.5 Those words are,
however, a starting point rather than a finishing point in the exercise of interpretation.6
The differences between the interpretation of the Bill of Rights and the Constitution as a
whole is more a difference of degree than a difference in kind. Because the Bill of Rights is
more widely worded, there is more room for explicit value judgments in interpreting the Bill
of Rights. Where other chapters of the Constitution are being interpreted the words themselves
tend to provide a clearer indication of what is required. Nevertheless, whether it is more or
1
Cf S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 17.
2
See S v Zuma & others at para 13; James v Commonwealth of Australia [1936] AC 578 at 613; Minister of
Home Affairs v Bickle 1984 (2) SA 439 (ZS) at 447F--H; R v Dubois (1986) 23 DLR (4th) 503 (SCC) at 528; Gilbert
Marcus ‘Interpreting the Chapter on Fundamental Rights’ (1994) 10 SAJHR 92 at 99. See also Executive Council,
Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC),
1995 (10) BCLR 1289 (CC) at paras 33, 49; Premier, KwaZulu-Natal, & others v President of the Republic of South
Africa & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC) at paras 18--20; Ferreira v Levin NO & others
1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 172.
3
S v Zuma & others at para 17.
4
Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at paras 61--2; Shabalala v Attorney-General (Transvaal) 1996
(1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at paras 26--8. Cf Kriegler J in S v Mhlungu & others 1995 (3) SA
867 (CC), 1995 (7) BCLR 793 (CC) at paras 89 and 99, and Sachs J at para 111. See also Mahomed J in S v
Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 262, Langa J at paras 220--3,
Mokgoro J at paras 311--13, and O’Regan J at paras 322--3. The foundational nature of the Constitution may itself
render inappropriate certain principles of statutory interpretation, such as the presumption against retrospectivity
and retroactivity (Mhlungu at para 99 (Kriegler J)). See above, § 11.4.
5
In S v Mhlungu & others at para 63 Kentridge JA said, in relation to s 241(8) of the Constitution: ‘A purposive
construction is as appropriate here as in other parts of the Constitution.’ See also Executive Council, Western Cape
Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR
1289 (CC) at paras 61--2, 99--100.
6
While there is broad agreement amongst the judges of the Constitutional Court that the meaning of the
Constitution is to be found in an interplay of the text and its underlying values, judges have differed as to where the
emphasis is to be placed. This is discussed further below, § 11.9.
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less explicit or obvious, the exercise of interpretation is one of giving effect to constitutional
values.1
11.6 THE SUPREMACY OF THE CONSTITUTION
16 Preamble to the Constitution recognizes and records the need ‘to create a new order in
The
which all South Africans will be entitled to a common South African citizenship in a
sovereign and democratic constitutional state’. The supremacy clause, s 4(1), encapsulates
the import of the transition from parliamentary sovereignty to a society governed by the
principles of constitutional democracy:
‘This Constitution shall be the supreme law of the Republic and any law or act inconsistent with
its provisions shall, unless otherwise provided expressly or by necessary implication in this
Constitution, be of no force and effect to the extent of the inconsistency.’
Constitutional supremacy means that the Constitution provides the yardstick against
which to measure the validity of the products of the legislative process and the actions of
the executive branch of government.2 The Constitution fundamentally alters the role of the
judiciary and greatly enhances its powers. Although judicial review is familiar to our common
law, its scope has been radically expanded. The combined effect of s 4(1) and the open texture
of constitutional language means that judicial review will be more far-reaching and policyladen. The courts will be expected to balance and resolve clashes between competing rights,
values and social goals.3 While it is not the task of the courts to ‘second guess’ the policy
choices of the legislature and executive, they are duty bound to exert the constitutional control
with which they are vested in order to ensure that the democratic scheme laid out in the
Constitution is observed by each branch of government.4
‘It is of crucial importance at this early stage of our new constitutional order to establish respect
for the principle that the Constitution is supreme.’5
All judges are bound to uphold and protect the Constitution and the fundamental rights
entrenched therein.6 The impact of the Constitution will be felt, to differing degrees, in all
1
See generally Executive Council, Western Cape Legislature, & others v President of the Republic of South
Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC); Premier, KwaZulu-Natal, & others v President
of the Republic of South Africa & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC).
2
Cf Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at paras 62, 99--100. The impact of the Constitution upon the
common law and upon private disputes is considered above, Woolman ‘Application’ § 10.3.
3
S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 302 (Mokgoro J
concurring); Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 634F, 1995 (1) BCLR 75 (E).
4
Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at paras 99--100.
5
Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 100.
6
Section 98(7) and Schedule 3 ‘Oaths of Office and Solemn Affirmations’.
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our courts.1 The Constitutional Court is the court of final instance, having jurisdiction ‘over
all matters relating to the interpretation, protection and enforcement of the provisions of this
Constitution’.2 Its decisions bind all persons and all legislative, executive and judicial organs
of state.3 The Constitutional Court is bound to declare any law or provision which is
inconsistent with the Constitution invalid to the extent of the inconsistency.4 The Constitutional Court in particular, and the judiciary more generally, is therefore charged with
protecting the elements of our constitutional democracy.5
16A
In considering the new role for the courts Froneman J points out in Qozeleni v Minister
of Safety and Security & another that:
‘The role of judges in a system of judicial review based on the supremacy of the Constitution is
bound to be controversial in any event, but the judicial history of this country makes it even more
likely if due regard is not given to the possible deficiencies of the past.’6
One of the ironies of the process of political transformation has been that the replacement of
government by racial oligarchy with the principles of non-racial and representative democracy has been accompanied by the constitutional entrenchment of a judicial power not
merely to regulate the products of a democratically elected legislature but also, on occasion,
to act against the will of the majority as expressed through the legislature.7
The effect of the supremacy clause is to assign to the courts a role which extends beyond
interpreting and enforcing the majority will, to the protection of the fundamental rights of
individuals and minorities. In fulfilling this role courts may declare the executive or
legislative acts of representative government to be unconstitutional. The judiciary thus acts
as a countermajoritarian institution. Constitutional democracy embodies a tension between
majoritarianism and judicial review. Democratic government locates sovereign authority in
the will of the people. This popular will, in a representative democracy, is expressed through
popularly elected representatives. At the same time the supremacy clause, which entrenches
constitutional review, subjects the products of the legislative process to judicial scrutiny and,
1
Section 101(3) sets out those constitutional matters over which provincial and local divisions of the Supreme
Court have jurisdiction. Section 103 sets out the jurisdiction of other courts in respect of constitutional matters. See
also Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 635D--638D, 1995 (1) BCLR 75 (E),
which held that magistrates’ courts have jurisdiction to apply the provisions of the Constitution except where
specifically precluded from doing so, as in s 103(2), (3) and (4). That magistrates do have the power to inquire into
the validity of laws other than statutes has subsequently been made clear by the amendment effected to subsecs (1)
and (2) by s 5 of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994. Cf § 11.3(c)
above. In Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 63 the words ‘a court’ in
s 35(3) were interpreted to mean ‘all courts’, including the Appellate Division. Cf paras 141--3 (Kriegler J,
dissenting); see also Gardener v Whitaker 1996 (6) BCLR 775 (CC) at para 16. Writing for the entire court in
Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC), Ackermann J held that the words
referred also to magistrates’ courts (para 18; see also paras 8--9). For further consideration of the impact of the
Constitution upon our courts, see above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ ch 6.
2
3
Section 98(2).
Section 98(4).
4
Section 98(5). See also S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 39; Executive
Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877
(CC), 1995 (10) BCLR 1289 (CC) at para 102.
5
Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others
1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at paras 99--100.
6
1994 (3) SA 625 (E) at 633B--C, 1995 (1) BCLR 75 (E).
7
Dennis Davis, Matthew Chaskalson & Johan de Waal ‘Democracy and Constitutionalism: The Role of
Constitutional Interpretation’ in Dawid van Wyk, John Dugard, Bertus de Villiers & Dennis Davis (eds) Rights and
Constitutionalism (1994) 62.
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where necessary, to judicial override. Unelected judges who are not directly accountable to
any constituency may therefore invalidate the product of democratic deliberation.1 The outcome of constitutional review may occasionally be so unacceptable to the legislature that it
causes pressure for constitutional amendments.2 Nevertheless, the need to avoid weakening
the fabric of constitutional democracy will prevent resort to constitutional amendment in all
but the most extraordinary of circumstances. Consequently, where the Constitutional Court
declares a statutory enactment or executive action to be unconstitutional it may thwart the
will of the people. It will then be exercising power and authority, not in the name of the
majority, but against its wishes. This tension, at the heart of constitutional democracy, is
known as the countermajoritarian dilemma.3
16BIn the course of his judgment on the constitutionality of the death penalty as a competent
sentence for murder4 Chaskalson P had occasion to consider the relationship between public
opinion and constitutional interpretation. His remarks provide insight into the tension
between majoritarianism and constitutional democracy and into the court’s perception of its
institutional role:
‘Public opinion may have some relevance to the inquiry, but in itself, it is no substitute for the duty
vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. If
public opinion were to be decisive there would be no need for constitutional adjudication. The
protection of rights could then be left to Parliament, which has a mandate from the public, and is
answerable to the public for the way its mandate is exercised, but this would be a return
to parliamentary sovereignty, and a retreat from the new legal order established by the 1993
Constitution. By the same token the issue of the constitutionality of capital punishment cannot be
1
Section 98(1) provides for a President of the Constitutional Court and ten other judges to be appointed, in terms
of s 99, for a non-renewable period of seven years.
2
A majority of at least two-thirds of the total number of members of the National Assembly and the Senate at a
joint sitting is required to pass ordinary constitutional amendments (s 62(1)). Amendments to ss 126 and 144 of the
Constitution require separate passage by both Houses by a majority of at least two-thirds of all the members of each
House together with the consent of the relevant provincial legislature (s 62(2)).
3
Alexander M Bickel The Least Dangerous Branch (1962) 16.
4
S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC). This case, holding that the death
penalty for murder, as authorized by s 277(1)(a) of the Criminal Procedure Act 51 of 1977, is unconstitutional, is
considered in detail in other chapters of this volume. See below, Fedler ‘Life’ ch 15 and Van Zyl Smit ‘Sentencing
and Punishment’ ch 28.
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referred to a referendum, in which a majority view would prevail over the wishes of any minority.
The very reason for establishing the new legal order, and for vesting the power of judicial review
of all legislation in the courts, was to protect the rights of minorities and others who cannot protect
their rights adequately through the democratic process. Those who are entitled to claim this
protection include the social outcasts and marginalized people of our society. It is only if there is a
willingness to protect the worst and the weakest amongst us, that all of us can be secure that our
own rights will be protected.’1
ORIGINAL SERVICE, 1996
17
One of the concerns about the new function of constitutional review is that there are
inadequate mechanisms to discipline the judicial function so as to ensure that the judiciary
does not usurp the role of the legislature. It is feared that the wider the scope for judicial
discretion, the greater the risk that judges will import into the process of interpretation their
own values and beliefs about how society ought to be ordered. This concern has led
Kentridge AJ to issue the reminder that ‘it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean’.2
The countermajoritarian dilemma requires that close attention be paid to the scope and
exercise of constitutional review. An adequate theory of constitutional interpretation therefore requires more than a set of principles and protocols of textual interpretation. It must
confront the countermajoritarian dilemma and provide justification for the exercise of
judicial power. An adequate theory of interpretation must, in addition, establish principles
that will enable the courts to determine how, under what circumstances, and with what degree
of intervention to exercise their power. A theory of interpretation must offer guidelines as to
those circumstances which demand aggressive judicial intervention, and those in which
greater deference to the legislature is more appropriate. In what follows we consider several
interpretive responses to these issues.
11.7 THEORIES OF INTERPRETATION
(a)
Originalist interpretation: the primacy of drafters’ intent
One approach to the countermajoritarian dilemma is to attempt to minimize, as far as
possible, the scope for the exercise of judicial discretion. Interpretive procedures based upon
the search for the original intention of the drafters of the Constitution aim to reduce the risk
that judges will impose their own value judgments when interpreting the Constitution.
Proponents of originalism argue that the meaning of constitutional provisions may be
ascertained by establishing the intent of the framers of the document, and that the only
principled role for judges is to secure the implementation of the original intent.3
Originalism would have current legislatures and courts conform to earlier choices made
by the people through the drafters of the instrument. The boundaries of permissible constitutional interpretation, and the limits upon the exercise of judicial discretion, are therefore set
1
S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 88. See also Didcott J at
para 188, Kentridge JA at para 200, Kriegler J at para 206, Madala J at paras 254--7, Mahomed J at para 266, and
Mokgoro J at para 305.
2
S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 17; see also S v Makwanyane &
another at paras 206--7 (Kriegler J).
3
See e g E Meese (1986) 45 Public Admin LR 701; R Bork ‘Neutral Principles and Some First Amendment
Problems’ (1987) 47 Indiana LJ 1.
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by those who drafted the document. According to proponents of originalism, the countermajoritarian difficulty is weakened or dissolved by justifying constitutional review as a
method of ensuring fidelity to the intention of the drafters. The drafters themselves decided
to place certain areas of life beyond majority control. Provided the courts hew closely to the
parameters of this original decision and go no further down the countermajoritarian road than
did the drafters, the courts do no more, in enforcing countermajoritarian principles, than
secure fidelity to the drafters’ original premise.1 The courts do no more than give expression
to the values to which the nation has already bound itself.2 Consequently originalism draws
a stark contrast between the original understanding of the framers of the text, which it is
believed may be ascertained in a neutral manner, and the imposition of judicial value
judgments.3
18 The inadequacies of originalism lie not so much in the theory’s formulation of the problem
as in the solution which is proposed. Objections take two forms: pragmatic objections, which
cast serious doubt on the ability to ascertain with accuracy the intention of the drafters, and
principled objections, which argue that even if it were possible to ascertain original intent,
it is doubtful whether courts, legislatures and future generations should be bound by that
intent.
The pragmatic objections highlight the immense difficulties in ascertaining original
intent. These include attempting to excavate the intent of a collective body; to extract, out of
the mass of ambiguous and frequently contradictory historical material, a stable and coherent
statement of intent.4
In S v Makwanyane & another Chaskalson P held that background material may be used
as an aid to constitutional interpretation where it is clear, is not in dispute, and casts light on
why certain provisions were included in or excluded from the Constitution.5 Chaskalson P
pertinently distinguishes between the comments (and hence the intentions) of participants in
the constitution-making process and background evidence such as the reports of the technical
committees.6 It is therefore clear that the acceptance of the use of background materials does
not betoken an acceptance of the originalist method of interpretation. Rather, the recourse to
1
R Bork ‘Neutral Principles’ (1987) 47 Indiana LJ 1 at 2--3.
2
For examples in our law of interpretation based upon originalism, see e g Government of the Republic of
Bophuthatswana v Segale 1990 (1) SA 434 (BA) at 448G--H (‘The task of the Courts is to ascertain from the words
of the statute in the context thereof what the intention of the Legislature is. If the wording of the statute is clear and
unambiguous they state what the intention is. It is not for the Court to invent fancy ambiguities and usurp the function
of the Legislature.’) The narrowness of the Segale approach was explicitly disapproved by Kentridge JA in his
minority judgment in S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 84. Other
examples of an originalist approach are to be found in: S v Saib 1994 (2) BCLR 48 (D) at 53I--J (‘Nor do I think
that the rules for the interpretation of the Constitution differ materially from the ordinary rule of the interpretation
of statutes. One still has to ascertain and give effect to the intention of the legislature’); Kalla & another v The
Master & others 1995 (1) SA 261 (T) at 269C--D, 1994 (4) BCLR 79 (T) (seeking the intention of the legislature,
at least in so far as provisions other than those dealing with fundamental rights are concerned).
3
Robert H Bork The Tempting of America: The Political Seduction of the Law (1990). For an elaboration and
critique of originalist theories see Davis, Chaskalson & De Waal ‘Democracy and Constitutionalism: The Role of
Constitutional Interpretation’ in Van Wyk et al (eds) Rights and Constitutionalism 11--14; Dennis Davis ‘Democracy
---- Its Influence Upon the Process of Constitutional Interpretation’ (1994) 10 SAJHR 103 at 106--12.
4
On the pragmatic difficulties associated with the enterprise, see e g De Klerk & another v Du Plessis 1995 (2)
SA 40 (T) at 47E--G, 1994 (6) BCLR 124 (T); Laurence H Tribe & Michael C Dorf On Reading the Constitution
(1991) 8--13.
5
1995 (3) SA 391 (CC) at paras 17--19; cf above, § 11.2(d).
6
S v Makwanyane at paras 18--19.
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historical background is part of the process of purposive interpretation.1 The use of background materials, in the form of technical committee reports, as opposed to anecdotal
recollections of the participants, is permissible to the extent that it sheds light upon the
purpose of the provision in question and not because it is an index of the drafters’ intent.
19 It is our submission that the flaws of originalism render it inappropriate as an approach
to statutory interpretation, and still more inappropriate to constitutional interpretation.2
Difficult as it is to establish whose intention must be discovered in interpreting a statute, it
is still more difficult when one attempts to decide who the drafters of the Constitution were.3
Furthermore, statutory provisions attempt to specify permissible and prohibited conduct with
as much precision as possible. Certainty is a virtue and ambiguity, at least beyond a certain
limit, is often seen as an indication of poor draftsmanship. By contrast, constitutional
instruments, and particularly bills of fundamental rights, contain wide-ranging declarations
cast in open-ended language of great generality. The nature of constitutional instruments
therefore makes it difficult to determine the level of generality at which to specify the drafters’
intent. The more concrete, particular and specific the intention is believed to be, the narrower
the scope for judicial discretion. Concomitantly, however, the more resistant will the
interpretive product be to any change over time. By contrast, the higher the level of generality
at which intent is identified, the less able is originalism to resolve the countermajoritarian
difficulty by confining the exercise of judicial discretion.4
The more fundamental objections to originalism are those of principle. Even if it were
possible to identify original intent with sufficient precision, and at a meaningful level of
generality, it is not at all clear why the courts should base their interpretations upon such
intent. The merit of binding successive generations to the values, beliefs and intentions of
1
For a more detailed consideration of purposive interpretation, see below, § 11.8.
2
Statutory interpretation is an exercise of discerning the institutional intention of the legislature. This must not
be confused with the actual intentions of those originally responsible for passing the legislation.
3
In the US context see e g Ronald M Dworkin Life’s Dominion: An Argument About Abortion and Euthenasia
(1993) 133 (‘whose intention should today’s judges consult ---- the intentions of the congressmen who debated and
recommended the amendments, of the state legislatures who ratified them or of the public whose wishes these
politicians were supposed to be enforcing?’) cited in Davis ‘Democracy ---- Its Influence Upon the Process of
Constitutional Interpretation’ (1994) 10 SAJHR 103 at 111.
4
For elaboration of these arguments, see Terrance Sandalow ‘Constitutional Interpretation’ (1981) 79 Michigan
LR 1033 at 1034--9. See also Ronald Dworkin ‘The Forum of Principle’ in A Matter of Principle (1985); Paul Brest
‘The Misconceived Quest for the Original Understanding’ (1980) 60 Boston University LR 204; Cass R Sunstein
The Partial Constitution (1993) 103.
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an earlier generation becomes increasingly open to question with the passage of time.1 Even
where the drafters actually held a discernable intention it is not clear why changed circumstances, attitudes and values should not inflect subsequent interpretation. Such inflection
would enable the Constitution to remain responsive to contemporary problems. The flexibility offered by non-originalist interpretation provides necessary stability and an acceptable
combination of continuity and change. Furthermore, new questions will arise which the
drafters did not foresee, and could not reasonably have foreseen, but which require resolution
by the courts. In order to sustain the originalist position it would be necessary for its
proponents to demonstrate why it is that constitutional democracy is better served by a
commitment to past values than by a forthright effort to make of the Constitution a living
document which remains open to adaptation.2 Fidelity to democracy may itself require courts
to move beyond the original understanding of the substance of democracy.3
20 Although originalism reflects a methodologically conservative approach to interpretation,
it should not be assumed that originalism is always politically conservative. Particularly in
relation to statutory interpretation, the judicial restraint engendered by originalism is welcomed by those who place great importance on the achievement by the majority of its objects.
In South Africa at present the reigning in of the political will of the majority by an unelected
social elite is viewed by many progressives as something to be kept within strict bounds. The
distinctive character of originalist interpretation lies not in its substance but rather in its belief
that the judicial function may be appropriately restrained by a formal and methodological
commitment to the drafters’ intent.4
1
Some of the possible consequences of originalism may be illustrated by considering two US cases.In Scott v
Sandford 60 US 393 at 425 and 426, 15 LEd 691 (1857) the US Supreme Court was called upon to decide ‘whether
a person of African race can be a citizen of the United States’. The Court held that: ‘No one, we presume, supposes
that any change in public opinion or feeling . . . should induce the Court to give the words of the Constitution a
more liberal construction in their favour than they were intended to bear when the instrument was framed and
adopted. Such an argument would be altogether inadmissible in any tribunal called upon to interpret it. If any of its
provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but
while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only
the same in words, but the same in meaning.’ And in McGautha v California 402 US 183 at 226, 91 SCt 1454 (1971)
(separate opinion of Black J) the prohibition against ‘cruel and unusual punishments’ was stated, on the basis of
original intent, not to render the death penalty unconstitutional: ‘In my view, these words cannot be read to outlaw
capital punishment because the penalty was in common use and authorized by law here and in countries from which
our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end
capital punishment by the Amendment.’ For detailed consideration and critique of originalism in the United States,
see Sandalow ‘Constitutional Interpretation’ (1981) 79 Michigan LR 1033, from which these examples are taken.
2
The Attorney-General v Dow 1994 (6) BCLR 1 (Botswana) at 41F--H (‘We must not shy away from a basic
fact that whilst a particular construction of a constitutional provision may be able to meet the demands of the society
of a certain age such construction may not meet those of a later age. In my view the overriding principle must be
an adherence to the general picture presented by the Constitution into which each individual provision must fit in
order to maintain in essential details the picture of which the framers could have painted had they been faced with
circumstances of today. To hold otherwise would be to stultify the living Constitution in its growth. It seems to me
that a stultification of the Constitution must be prevented if this is possible without doing extreme violence to the
language of the Constitution. I conceive it that the primary duty of the Judges is to make the constitution grow and
develop in order to meet the just demands and aspirations of an ever developing society which is part of the wider
and larger human society governed by some acceptable concepts of human dignity’ (Aguda JA).
3
Sunstein The Partial Constitution (1993) 103.
4
Paradoxically, fidelity to the original intention of the drafters of the interim Constitution appears to require
judges to adopt a value-based approach to interpretation ---- see the discussion of ss 33(1), 35(1) and 35(3) above,
§ 11.3(a).
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(b)
Political process theory: constitutional review to remedy dysfunctions in the
political process
21
According
to political process theory, the role of constitutional review is to protect the
interests of those individuals and groups who are otherwise excluded from the political
process because they are not powerful enough to make their voices heard in the majoritarian
institutions of government.1 On this view the function of the courts is to reinforce the process
of democratic representation by correcting defects in the political process and thereby to
perfect democracy.2 This approach attempts to describe representation-reinforcement as a
value-neutral method which is hostile to any imposition of judicial value-judgments.3
The foundation for the view that searching constitutional review is justifiable in order to
protect minorities and reinforce the process of representation may be traced to the famous
footnote 4 to the US case of United States v Carolene Products Company.4 In this footnote
Stone J suggested that a stricter standard of judicial review might appropriately be applied
when determining the constitutionality of statutes which are ‘directed at particular religious
or national or racial minorities’ because ‘prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities’.
The process-based approach has the virtue of attempting to provide principled guidelines
for the exercise of constitutional review and also of offering a basis for judicial activism as
a means of reinforcing the democratic process. Nevertheless, two major interconnected
objections may be levelled at this theory of interpretation.
The first objection is that constitutional instruments are concerned with far more than
simply specifying a set of procedures to regulate the democratic process. Many constitutional
commitments are unavoidably value-based and substantive. They express the belief that
certain rights are fundamental to meaningful individual security and self-fulfilment and to
collective development. These commitments cannot be explained on the basis that the aim
of constitutional instruments is merely to specify the procedures for optimal democratic
representation.5 Even rights which have a primarily procedural function have the additional
purpose, beyond securing the integrity of the political process, of furthering substantive
values such as dignity, equality and privacy. Finally, even the products of a well-functioning
political process will be struck down as unconstitutional where they infringe fundamental
individual rights.6
1
See e g S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 88.
2
John Hart Ely Democracy and Distrust: A Theory of Judicial Review (1980) 103 (constitutional review is best
understood as a form of representation-reinforcement). For a helpful summary of political process theory, see Davis,
Chaskalson & De Waal ‘Democracy and Constitutionalism: The Role of Constitutional Interpretation’ in Van Wyk
et al (eds) Rights and Constitutionalism 16--19.
3
Ely Democracy and Distrust 72--3.
4
304 US 144 at 152, 58 SCt 778 (1938).
5
For persuasive arguments that a Constitution specifies many substantive values which cannot be accounted for
by a process-orientated model without doing violence to the instrument itself, see e g Sunstein The Partial
Constitution 104--5; Tribe & Dorf On Reading the Constitution (1991) 26--7; Ronald Dworkin ‘The Forum of
Principle’ (1981) 56 New York University LR 469.
6
Peter W Hogg Constitutional Law of Canada 3 ed (1992) p 33-25.
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The second and related objection is levelled at the claim of political process theory to
neutrality. Political process theory seeks to draw a rigid distinction between neutral process,
the reinforcement of which falls within the appropriate institutional competence of the courts,
and substantive value-judgments, which are considered to be illegitimate usurpations of the
legislative prerogative. The second objection questions whether this distinction can be
sustained. This critique of process theory goes beyond showing that the procedural features
of constitutional instruments are themselves based upon substantive values. More fundamentally, it calls upon process theory to demonstrate why the process-based conception of
constitutional democracy is superior to competing democratic visions.1
22 A more adequate political theory of constitutional interpretation would therefore have to
develop and defend a substantive conception of the meaning of democracy. This conception
would have to be wide enough to embrace the many non-procedural guarantees embodied
in constitutional instruments. It would also have to provide justifiable guidelines as to when
heightened judicial scrutiny or greater deference is most appropriate.
Our constitutional commitment to ‘an open and democratic society based on freedom and
equality’2 invites the development and articulation of such a political theory of interpretation.
At the most abstract level the interpretation clause embraces both those who would emphasize the fraught and often irreconcilable relationship between freedom and equality, and those
who would harmonize these values in the belief that meaningful liberty and autonomy require
a measure of substantive equality.
In the United States Cass Sunstein has commenced the task of developing a political theory
of interpretation based upon the requirements of what he calls ‘deliberative democracy’, that
is, a democracy based upon the imperative to provide reasoned debate and justification.3
Sunstein suggests that an aggressive role for the courts may be justified in two sets of
circumstances: first, when rights that are central to the democratic process, such as the right
to vote, freedom of speech and equal educational opportunity, are infringed, and their
infringement is unlikely to call up a political remedy; secondly, where a group faces obstacles
to organization, pervasive prejudice or hostility.4
For Sunstein a democratic theory of interpretation would be able to respond to the
countermajoritarian problem only by acknowledging that it was underpinned by and embodied substantive value choices which were capable of justification. While preserving the
insights of process theorists, such an approach would acknowledge that constitutional review
is appropriately a value-driven enterprise. A fully argued democratic theory might permit the
conclusion that:
‘It appears as well that the much-vaunted opposition between constitutionalism and democracy,
or between rights and democracy, tends on this account to dissolve entirely. Many rights are
indispensable to democracy and to democratic deliberation. If we protect such rights through the
1
Sunstein The Partial Constitution 105.
2
Sections 33(1) and 35(1).
3
Sunstein The Partial Constitution 142. For an influential South African approach to interpretation which shares
certain affinities with Sunstein’s position and which advocates an interpretive method which would further the
entrenchment of a culture of justification, see E Mureinik ‘A Bridge to Where?: Introducing the Interim Bill of
Rights’ (1994) 10 SAJHR 31. See also Matiso & others v Commanding Officer, Port Elizabeth Prison, & others
1994 (4) SA 592 (SE) at 598F--I, 1994 (3) BCLR 80 (SE) at 88F--I.
4
Sunstein The Partial Constitution 142--3.
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Constitution we do not compromise self-government at all. On the contrary, self-government
depends for its existence on firmly protected democratic rights. Constitutionalism can thus guarantee the preconditions for democracy by limiting the power of majorities to eliminate those
preconditions.
Moreover, rights-based constraints on the political process are necessary for a well-functioning
democracy; they are not antithetical to it. Unchecked majoritarianism should not be identified
with democracy. A system in which majorities are allowed to repress the views of those who disagree
could hardly be described as democratic.’1
(c)
Value-based interpretation: upholding individual rights in the forum of
principle
23 value-based approach to interpretation grounds the search for constitutional meaning
A
neither in the intention of the drafters nor solely in the demands of the political process.
Instead, the approach recognizes the value-laden nature of constitutional review and argues
that the proper approach to interpretation requires the courts to excavate and give expression
to the values which underpin particular constitutional guarantees.2 This approach is particularly applicable at the first stage of constitutional analysis, where the scope of the constitutional right in question must be determined in order to decide whether the conduct which is
the subject of complaint infringes that right. But the language of s 33(1) of the Constitution
means that value-based interpretation is not exhausted at the first stage of the inquiry but
operates under limitation clause analysis as well.3
Like other interpretive approaches, value-based interpretation is also grounded upon a
vision of the appropriate institutional role of the judiciary and reflects a particular response
to the countermajoritarian dilemma. Its proponents acknowledge the countermajoritarian
nature of constitutional review and argue that this role is most appropriate to the protection
of individual rights. The majoritarian institutions of government possess different institutional competencies from those of the judiciary. The role of the courts is not to make social
policy, but rather to articulate principle.4 Consequently, the relative insulation and weaker
mechanisms of democratic accountability characteristic of the judiciary provide the necessary space within which to perform the proper judicial function. If the role of the legislature
is to give expression to the majority will, the role of the courts, at least in constitutional
matters, is to protect individual rights which may be countermajoritarian in nature. The courts
are far more than clearing-houses for the products of the legislature. They protect certain
spheres of personhood against incursion by the majority. Meaningful enforcement of
individual rights may have, as its consequence, large-scale social intervention. One of
the functions of constitutional review is to determine when such intervention is justified by
the duty to protect individual rights. Viewed in this light, insulation from the vagaries of the
1
Sunstein The Partial Constitution 142.
2
See e g S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 303 (Mokgoro J
concurring); Matiso & others v Commanding Officer, Port Elizabeth Prison, & others 1994 (4) SA 592 (SE) at
597F--H, 1994 (3) BCLR 80 (SE) at 87F--H; Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 633G--I,
1995 (1) BCLR 75 (E); Khala v Minister of Safety and Security 1994 (4) SA 218 (W) at 222--4.
3
For further discussion of the stages of constitutional analysis, see below, § 11.10.
4
Dworkin A Matter of Principle (1985); Dworkin ‘The Forum of Principle’ (1981) 56 New York University LR
469; Dworkin Taking Rights Seriously (1977).
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political process is an advantage. Instead of being a participant in majoritarian bargaining
through the political process, the judiciary may consider questions of principle and political
morality. Large questions of distributive justice, freedom of political dissent, racism and
sexism, the demands of equality, the dimensions of human sexuality, and the requirements
of criminal justice raise questions of principle which are best resolved by the judiciary. One
need not believe that these political and moral questions are capable of yielding ‘correct’
answers to acknowledge that their proper public consideration is well served by the institution
of constitutional review.
24 In S v Makwanyane & another1 Didcott J concurs with Chaskalson P that the death
sentence for murder, previously permitted by s 277(1)(a) of the Criminal Procedure Act 51
of 1977, is unconstitutional. In the course of his opinion the judge reflects upon the role of
public opinion and the different institutional functions of legislature and judiciary:
‘Whether capital punishment ought to be abolished or retained amounted, so it was said, to a
question of policy which Parliament should decide, representing as it did the citizens of the country
and expressing their general will. The issue is also, however, a constitutional one. It has been put
before us squarely and properly. We cannot delegate to Parliament the duty that we bear to determine
it, or evade that duty otherwise, but must perform it ourselves. In doing so, we were counselled in
the alternative, we had to pay great attention to public opinion, which was said to favour the retention
of the death penalty. We have no means of ascertaining whether that is indeed so, but I shall assume
it to be the case. One may also assume, with a fair measure of confidence, that most members of
the public who support capital punishment do so primarily in the belief that, owing to its uniquely
deterrent force, they and their families are safer with than without its protection. The feeling is quite
understandable, given its basis. But it deserves no further homage if the premise underlying and
accounting for it is fallacious or unfounded, as I consider that one to be. To allow ourselves to be
influenced unduly by public opinion would, in any event, be wrong. Powell J disparaged such
external pressures on constitutional adjudication when he said in Furman v State of Georgia (408
US 238, 92 SCt 2726 (1972)) (at 443):
‘‘(T)he weight of the evidence indicates that the public generally has not accepted either the
morality or the social merit of the views so passionately advocated by the articulate spokesmen
for abolition. But however one may assess (the) amorphous ebb and flow of public opinion
generally on this volatile issue, this type of inquiry lies at the periphery ---- not the core ---- of the
judicial process in constitutional cases. The assessment of popular opinion is essentially a
legislative, not a judicial function.’’
In similar vein were these remarks passed by Jackson J on the earlier occasion of West Virginia
State Board of Education v Barnette & others 319 US 624 (63 SCt 1178) (1943) (at 638):
‘‘[T]he very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of majorities . . . and to establish them as
legal principles to be applied by the courts. One’s right to life . . . and other fundamental rights
may not be submitted to (the) vote; they depend on the outcome of no elections.’’ ’2
We submit that these reflections support the argument set out above that constitutional
review is frequently and properly a countermajoritarian function aimed at securing the
protection of individual rights.
1
1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC).
2
At para 188. See also Chaskalson P at para 88, Kentridge JA at para 200, Kriegler J at para 206, Madala J at
paras 254--7, Mahomed J at para 266, and Mokgoro J at para 305.
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11.8 DEVELOPING A PURPOSIVE APPROACH TO INTERPRETATION
REVISION SERVICE 3, 1998
Early constitutional cases were quick to recognize the similarity between value-based
interpretation and the method of purposive interpretation applied in Canadian constitutional law.1
25 The judgment of Dickson J in the Canadian Charter case of R v Big M Drug Mart Ltd has
become the locus classicus of purposive interpretation:
‘In Hunter v Southam Inc(2) . . . this court expressed the view that the proper approach to the
definition of rights and freedoms guaranteed by the Charter was a purposive one. The meaning of
a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose
of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant
to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in
question is to be sought by reference to the character and larger objects of the Charter itself, to the
language chosen to articulate the specific right or freedom, to the historical origins of the concept
enshrined, and where applicable, to the meaning and purpose of the other specific rights and
freedoms with which it is associated within the text of the Charter. The interpretation should be, as
the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the
purpose of a guarantee and securing for individuals the full benefit of the Charter’s protection. At
the same time it is important not to overshoot the actual purpose of the right or freedom in question,
but to recall that the Charter was not enacted in a vacuum, and must therefore . . . be placed in its
proper linguistic, philosophical and historical contexts.’3
This passage was cited with approval by Kentridge AJ, writing for a unanimous court in
S v Zuma.4 While the contours of a purposive approach to the interpretation of the Constitution remain to be fully elaborated, the Constitutional Court has already articulated three
important principles of purposive interpretation.
First, a purposive interpretation must give proper weight to the fact that it is the South
African Constitution, and not an international instrument or the Constitution of some foreign
country, that our courts are called upon to construe.5 Hence, as Kentridge AJ points out in
S v Zuma & others:
‘[R]egard must be paid to the legal history, traditions and usages of the country concerned, if the
purposes of its Constitution are to be fully understood.’6
The emphasis placed on developing an indigenous South African jurisprudence may
be stated negatively. Section 35(1) requires regard, where applicable, to public international
law, and permits consideration of foreign case law. Nevertheless, caution is required to
avoid the importation of foreign doctrines which are not appropriate to our own history,
1
See e g Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 634G--I, 1995 (1) BCLR 75 (E) at 81C--E.
For Supreme Court cases holding that the proper approach to interpretation is a purposive approach, see e g S v
Gqozo & another (2) 1994 (1) BCLR 10 (Ck) at 13D--H; Khala v Minister of Safety and Security 1994 (4) SA 218
(W) at 222H--I, 1994 (2) BCLR 89 (W) at 92G--H; Rattigan & others v Chief Immigration Officer & others 1995
(1) BCLR 1 (ZS) at 4I--J; De Klerk v Du Plessis 1995 (2) SA 40 (T) at 46B, 1994 (6) BCLR 124 (T); Park-Ross v
Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 161D--H, 1995 (5) BCLR 652 (C).
2
3
(1985) 11 DLR (4th) 641.
(1985) 18 DLR (4th) 321 at 359--60.
4
1995 (2) SA 642 (CC) at para 15. See also S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR
665 (CC) at para 9; S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 8; Ferreira v
Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 172.
5
S v Makwanyane & another at para 39.
6
S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 15; see also S v Makwanyane at para 39
(Chaskalson P); African National Congress & another v Minister of Local Government and Housing, KwaZulu
Natal, & others 1998 (3) SA 1 (CC), 1998 (4) BCLR 399 (CC) at paras 4--19.
[REVISION SERVICE 3, 1998]
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circumstances and aspirations.1 At the same time, however, the paucity of local judicial
precedent upholding human rights means that public international law and foreign case law
will provide guidance for some time to come.2 In S v Makwanyane3 the point is articulated
positively. Concern to develop a South African constitutional jurisprudence also requires that
buried and repressed local knowledge and values be disinterred. Langa J elaborates the
meaning and relevance of the concept of ubuntu for constitutional jurisprudence.4 Mokgoro J
emphasizes the importance of indigenous South African values in performing interpretation
in accordance with s 35.5 Sachs J stresses that recognition must be given to African law and
legal thinking.6
26 Secondly, paying proper attention to our legal history, traditions and usages does not imply
that constitutional rights should be cut down ‘by reading implicit restrictions into them, so
as to bring them into line with the common law’.7 In other words, a purposive interpretation
provides no grounds for assuming that the existing common-law protection of individual
rights exhausts the meaning and scope of constitutional guarantees.
Purposive interpretation must give proper weight both to continuity and to rupture. It
clearly does not imply that all previous rules of law are henceforth to be ignored.8 Nevertheless, the degree of continuity with the past should not be exaggerated. As Mahomed J points
out in his concurring opinion in S v Makwanyane:
‘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 conditions upon which that power is to be exercised;
the national ethos which defines and regulates that exercise; and the moral and ethical direction
which that nation has identified for its future. In some countries the Constitution only formalizes,
in a legal instrument, a historical consensus of values 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,
1
In Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 132--3 Kriegler J, in a separate
concurring judgment to which Didcott J subscribed, decried a frequent and facile resort to foreign authorities. He
emphasized the care and study required in locating such authorities in their proper context and determining whether
they were indeed applicable and of relevance to the matter under enquiry. See also Kriegler J’s statements on this
issue in Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 127; Executive Council,
Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC),
1995 (10) BCLR 1298 (CC) at para 61; Ex parte Speaker of the National Assembly: In re Dispute Concerning the
Constitutionality of Certain Provisions of the National Education Policy Bill 83 of 1995 1996 (3) SA 289 (CC),
1995 (4) BCLR 518 (CC) at para 22; S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579
(CC) at para 26; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 101 (Ackermann
J); Thomson Newspapers Ltd v Director of Investigation and Research (1990) 67 DLR (4th) 161 at 279f--g; Fose v
Minister of Safety and Security 1996 (2) BCLR 232 (W) at 237F--238A, 242C and G; Berg v Prokureur-Generaal
van Gauteng 1995 (11) BCLR 1441 (T) at 1445G--1446E. Compare O Kahn Freund ‘On the Uses and Misuses of
Comparative Law’ (1974) 37 Modern LR 1. Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 633F--G,
1995 (1) BCLR 75 (E); Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 160F--H,
1995 (5) BCLR 652 (C).
2
S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 304 (Mokgoro J concurring).
3
4
Supra.
At paras 223--7.
5
6
At paras 300 and 307--8.
At para 365.
7
S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 15 (citing Attorney-General v Moagi 1982
(2) Botswana LR 124 at 184).
8
S v Zuma at para 17.
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and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular,
and repressive, and a vigorous identification 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.’1
REVISION SERVICE 5, 1999
27 Thirdly, a purposive interpretation will not always coincide with a liberal and generous
interpretation. It is important to maintain a conceptual distinction between purposive and
generous approaches.2 In some instances a generous or liberal interpretation may overshoot
the purpose of the right.3 In many other instances a purposive approach will result in a
generous interpretation, but this would be the consequence of ascertaining the purpose of the
right in question, and not a premise for interpretation.4 In the course of giving meaning to
the right to life enshrined by s 9 of the Constitution in her concurring opinion in S v
Makwanyane, O’Regan J draws the pertinent distinction:
‘This purposive or teleological approach to the interpretation of rights may at times require a
generous meaning to be given to provisions of Chapter 3 of the Constitution and at other times a
narrower or specific meaning. It is the responsibility of the courts, and ultimately this court, to
develop fully the rights entrenched in the Constitution. But this will take time. Consequently any
minimum content which is attributed to a right may in subsequent cases be expanded and
developed.’5
The particular context in which a right is claimed may be very important in deciding
whether it should be construed broadly or with greater specificity.6 The purposive approach
is therefore allied to a contextual approach.7 This approach
1
S v Makwanyane & another at para 262, Langa J at paras 220--3, Mokgoro J at paras 311--13, and O’Regan J
at paras 322--3; see also S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at paras 89, 99
(Kriegler J), 111, 127 (Sachs J); Executive Council, Western Cape Legislature, & others v President of the Republic
of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 62; Shabalala v AttorneyGeneral (Transvaal) 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at paras 26--8.
2
In South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC), 1999 (6)
BCLR 615 (CC) at para 28 O’Regan J said: ‘In previous cases, it has been said that at times the interpretation of
rights should be generous and such as to accord individuals the full protection of the rights, although it has also
been said that a purposive interpretation of rights will not always require a generous one.’
3
Nortje & another v Attorney-General of the Cape & another 1995 (2) SA 460 (C) at 471J--472D, 1995 (2)
BCLR 236 (C).
4
In South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC), 1999 (6)
BCLR 615 (CC) the Constitutional Court considered and invalidated s 126B of the Defence Act 44 of 1957 to the
extent that it prohibited members of the South African National Defence Force from participating in public protest
and joining trade unions. In considering the prohibition against membership of a trade union the court had to decide
whether members of the Permanent Force were ‘workers’ within the meaning of FC s 23(2), which guaranteed every
worker the right to form and join trade unions. The court concluded, at para 28, that the proper interpretation of the
right was a generous one. The result is that members of the Permanent Force are indeed ‘workers’ for purposes of
the constitutional protection afforded by FC s 23(2). See also De Klerk & another v Du Plessis & others 1995 (2)
SA 40 (T) at 45J--46D, 1994 (6) BCLR 124 (T).
5
S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 325. See also Soobramoney v Minister
of Health, KwaZulu Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC) at para 17.
6
See Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 170, 172, 181--5
(Chaskalson P); Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696
(CC) at para 17.
7
Cf Mahomed J in S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 15; S v
Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 655 (CC) at para 10; Ferreira v Levin NO & others 1996 (1)
SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 170, 172 (Chaskalson P).
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‘recognizes that a particular right or freedom may have a different value depending on the
context . . . The contextual approach attempts to bring into sharp relief the aspect of the right or
freedom which is truly at stake in the case as well as the relevant aspects of any values in competition
with it’.1
11.9 THE PRESSURES OF THE TEXT
The adoption of a purposive, value-based approach to interpretation unavoidably raises
the question of the limits upon possible interpretations, and requires a consideration of the
devices available to discipline interpretation. Without recourse to the intention of the framers
or the demands of the political process, it is the language of the text, and the fact that the
Constitution remains a legal instrument, which provides a safeguard against judicial overreaching. The proper role and function of the text in the exercise of constitutional interpretation will emerge gradually. Nevertheless, one may already identify subtle but important
differences of emphasis amongst the judges of the Constitutional Court.
28 In S v Zuma the Constitutional Court laid down basic guidelines to the interpretation of
the Constitution.2 In doing so it approved dicta emanating from courts in other jurisdictions
stating that constitutional rights are to be generously interpreted,3 as well as dicta indicating
that a Bill of Rights should be purposively interpreted.4 The court endorsed the view that
courts interpreting the Constitution should give expression to the values embodied in the
Constitution, as indeed they are enjoined to do by s 35. Nevertheless, Kentridge AJ was at
pains to emphasize that this process of constitutional evaluation does not entail the abandonment of those principles of law which are themselves of lasting value, nor the neglect of the
language of the Constitution:5
‘While we must always be conscious of the values underlying the Constitution, it is none the less
our task to interpret a written instrument. I am well aware of the fallacy of supposing that general
language must have a single ‘‘objective’’ meaning. Nor is it easy to avoid the influence of one’s
personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the
Constitution does not mean whatever we might wish it to mean . . . If the language used by the
lawgiver is ignored in favour of a general resort to ‘‘values’’ the result is not interpretation but
divination.’6
The entire court concurred in the judgment of Kentridge AJ. Subsequent decisions of the
Constitutional Court have, however, revealed that within the parameters of the approach
articulated in the Zuma case there is scope for significant judicial variation.
1
2
3
4
5
6
Edmonton Journal v Alberta (Attorney General) (1989) 64 DLR (4th) 577 at 583--4 per Wilson J.
1995 (2) SA 642 (CC) at paras 13--18 per Kentridge AJ, giving judgment for a unanimous court.
At para 14.
At para 15.
S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at paras 17--18.
At paras 17--18.
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In S v Mhlungu & others1 the court was called upon to determine whether five persons
charged with murder prior to the commencement of the Constitution were prevented by s 241(8)
of the Constitution from challenging the constitutionality of confessions obtained from them
in accordance with s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977.2 In resolving
this question the court was required to give meaning to s 241(8). The section is contained in
the chapter dealing with transitional arrangements for the judiciary, and provides:
‘All proceedings which immediately before the commencement of this Constitution were pending
before any court of law, including any tribunal or reviewing authority established by or under law,
exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this
Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review
proceedings with regard thereto are instituted after such commencement such proceedings shall be
brought before the court having jurisdiction under this Constitution.’
The minority judgment of Kentridge AJ emphasizes the most linguistically plausible interpretation.3 The judge acknowledges the scope for purposive interpretation, and adverts to
28A
1
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).
2
The case is more fully considered elsewhere in this volume. See above, Loots & Marcus ‘Jurisdiction, Powers
and Procedures of the Court’ ch 6.
3
Chaskalson P, Ackermann and Didcott JJ concurred in the judgment of Kentridge AJ.
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the fallacy of believing that language has a single objective meaning. Moreover, the judgment
specifically disapproves a narrow approach to the language of a Constitution.1 The minority
nevertheless takes the view that the language of the text is not infinitely malleable, but defines
the limits of generous interpretation.2 Hence the minority concludes that
‘there are some provisions, even in a Constitution, where the language used, read in its context, is
too clear to be capable of sensible qualification. It is the duty of all courts, in terms of s 35, to
promote the values which underlie a democratic society based on freedom and equality. In the long
run, I respectfully suggest, those values are not promoted by doing violence to the language of the
Constitution in order to remedy what may seem to be hard cases’.3
REVISION SERVICE 1, 1996
29
In consequence the minority was compelled to refuse the five accused the constitutional rights
that would be enjoyed by those accused persons charged after the commencement of the
Constitution.
Writing for the majority, Mahomed J held that s 241(8) did not prevent the five accused
from raising constitutional defences.4 After noting the harsh and anomalous consequences
for the accused which would result from the alternative interpretation, the judge states:
‘None of these very serious difficulties can justify a refusal to give effect to the words of the section
if they were not reasonably capable of an alternative construction. Such an alternative construction
would have to be based not only on the literal meaning of the words ‘‘as if this Constitution had
not been passed’’ in isolation, but in its proper context. The relevant context would be s 241(8) itself,
s 241 as a whole, and the larger context of the Constitution regarded as a holistic and integrated
document with critical and important objectives. The crucial question is whether, adopting this
approach, such an alternative construction to s 241(8) is reasonably available.’5
Mahomed J is content to work within the fabric of the written document. An interpretation
which does violence to the language cannot be adopted, no matter how desirable its
consequences. To this extent the written document exercises its limiting, containing, and,
ultimately, disciplinary function upon interpretation. Nevertheless, the judge strives to
develop a reasonable alternative to what he calls the ‘literal interpretation’ of the minority.
In Mahomed J’s view the text accommodates an alternative interpretation which avoids the
distressingly anomalous consequences of the minority approach. Mahomed J concedes that
the alternative interpretation is not without difficulties. Nevertheless, concludes the judge, it
is to be preferred because it
‘gives force and effect to the fundamental objectives and aspirations of the Constitution, because
it is less arbitrary in its consequences and because it is more naturally in harmony with the context
of s 241(8) itself and the Constitution as a whole’.6
These advantages are absent from the literal interpretation, which, the majority considers
‘is not compelled by the text of the section, read in its context and with regard to the objects of the
Constitution’.7
1
At para 84.
3
At para 84.
4
2
At para 78.
Langa, Madala, Mokgoro and O’Regan JJ concurred in the judgment of Mahomed J. Kriegler J agreed with
the order formulated by Mahomed J, but gave a separate judgment; Sachs J likewise agreed with the order, and with
the conclusion reached by Mahomed J, but reached that conclusion by a different interpretive route, in the course
of which he sought to reconcile s 241(8) with the provisions of Chapter 3 (at paras 102--46).
5
S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 15; see also paras 8 and 9.
6
7
At para 45; see also para 24.
At para 46.
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The differences articulated between the majority and the minority in the Mhlungu case
are differences of emphasis rather than differences of principle.1 Both Mahomed J and
Kentridge AJ adopt the view that there may be different plausible and reasonable interpretations of the same constitutional provision. Both accept and apply a purposive approach to
interpretation. Both accept that they are bound by the disciplining functions of the written
instrument itself, and that they would overreach the legitimate boundaries of interpretation
were they to develop a construction which had no basis in the language of the text.
30 The minority, however, considers that where the meaning of language is clear the
importation of an alternative meaning which appears to be more consonant with underlying
values is impermissible. The mere fact that the clear meaning gives rise to certain anomalies
is no licence to search for an alternative interpretation. By contrast, the majority considers
that where the literal meaning of a text gives rise to anomaly, and perpetuates injustice, an alternative approach which avoids such consequences must be sought. If an interpretation more
consonant with the deepest commitments of the Constitution can reasonably be accommodated within the confines of the text, then such an interpretation should be preferred.
As between the majority and the minority, there is a difference of approach, and a
difference of opinion. The difference of approach is that the minority regards clarity of
language as conclusive of the meaning of the provision, whereas the majority sees language
as the outer perimeter within which the expression of constitutional values is ultimately
confined. The difference of opinion is that the majority considers that the literal interpretation is
not compelled by the wording of the provision, whereas the minority considers that the words
are not reasonably capable of bearing the meaning which the majority would give them.
On the relationship between textual construction, underlying values and policy considerations, the case of Du Plessis v De Klerk2 provides a particularly interesting sequel to S v
Mhlungu.3 In that case the justices of the Constitutional Court unanimously held that,
notwithstanding the interpretation given to s 241(8) in Mhlungu’s case, the Constitution did
not operate retrospectively.4
Sharp differences emerged, however, on the question of whether the Bill of Rights was of
direct application to the common law in disputes between private parties, not involving any
legislative or executive authority.5 On this issue, Mahomed J concurs with Kentridge AJ,
1
It would be inaccurate to distinguish between the two approaches on the basis that the majority is more
concerned with substantive values than with language, while the minority orders the priorities in reverse. Both are
alive to the joint pressure of text and value. The emphasis, however, is different. The majority judgment is acutely
sensitive to the historical experience of justice denied and delayed, and this inflects the manner in which the written
document exerts its pressure. For the minority the values of a democratic society are best served by securing the
long-term stability which is derived from the rule of law and a proper regard for the limits which the written text
imposes on constitutional adjudication.
2
3
1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC).
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).
4
At paras 13--14, 20. The court left open the possibility that the enforcement of rights acquired prior to the
coming into force of Constitution may be declined in particular cases where such enforcement would be grossly
unjust and abhorrent. See also Mahomed J at para 69.
5
Chaskalson P, Langa J and O’Regan J concurred in Kentridge AJ’s judgment. Mahomed DP wrote a separate
concurring judgment, in which Langa J and O’Regan J also concurred. Mokgoro J wrote a separate judgment in
which she agreed with Kentridge AJ and Mahomed DP. Ackermann J and Sachs J wrote separate judgments
concurring with Kentridge AJ. Kreigler J, in a judgment with which Didcott J agreed, vigorously dissented from
the majority on this question. Madala J concluded that certain rights in Chapter 3 lend themselves to direct horizontal
application, whereas others are indirectly horizontally applicable.
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writing for the majority, in finding that the Bill of Rights does not apply directly to such
disputes. Like Kentridge AJ, Mahomed J considers that the relevant provisions of the text of
the Constitution indicate that the Bill of Rights does not apply directly to common-law rules
in litigation between private parties.1 He makes it clear that he would have been profoundly
uncomfortable with such an interpretation had it facilitated the private perpetuation of
inequalities created by apartheid and surviving its official demise. Mahomed J is persuaded,
however, that the practical consequences of indirect application of the Bill of Rights by virtue
of s 35(3) are substantially similar to those flowing from the direct application of the Bill of
Rights to private common law.2 Were it otherwise, he declared, he would have been
‘compelled to ask whether the interpretation favoured by Kentridge AJ is perhaps not flawed
in some respect which I might have overlooked or whether I have not perhaps accorded
inadequate weight to some of the relevant considerations so forcefully articulated in the
judgment of Kriegler J’.3 Mahomed J thus makes it clear that his fidelity to what he regards
as the most linguistically plausible interpretation of the text is conditional upon that
interpretation according with his conception of the fundamental purposes and values of the
Constitution.4
31 Kriegler J, on the other hand, is firmly convinced that a simple application of ‘the
interpretational tools with which lawyers are familiar’ to the relevant provisions of the text
of the Constitution clearly indicates that the Bill of Rights applies directly where rules of
common law are invoked in legal disputes between private parties.5 In Kriegler J’s view, his
straight-forward reading is more faithful to the wording of the text and its underlying values
than that of the majority:
‘My reading of Chapter 3 gives the Constitution a simple integrity. It says what it means and it
means what it says. There is no room for the subtleties and nice distinctions so dear to the hearts
of medieval theologians and modern constitutional lawyers. The Constitution promises ‘‘an open
and democratic society based on freedom and equality’’, a radical break with the ‘‘untold suffering
and injustice’’ of the past. It then lists and judicially safeguards the fundamental rights and freedoms
necessary to render those benefits attainable by all. No one familiar with the stark reality of South
Africa and the power relationships in its society can believe that protection of the individual only
against the state can possibly bring those benefits.’6
11.10 THE STRUCTURE OF CONSTITUTIONAL INTERPRETATION: TWO-STAGE ANALYSIS
Chapter 3 of the Constitution, like the Canadian Charter of Rights and Freedoms, contains
a general limitation clause.7 The inclusion of s 33 in the Chapter has significant implications
for the structure of constitutional analysis. Where a Bill of Rights has no general limitation
clause8 limitations must be read into the very definition of the right. The presence of a
limitation clause means that constitutional analysis proceeds in two stages.
1
Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC), in particular paras 44--9 (Kentridge AJ),
paras 76--83 (Mahomed J).
2
3
At paras 72--3.
At para 85.
4
Cf para 75; cf Mokgoro J at paras 166--9; Sachs J at paras 175, 190.
5
6
See, in particular, paras 128--38.
At para 145.
7
For a discussion of the limitations clause, see below, Woolman ‘Limitation’ ch 12.
8
For example, those of the United States and Hong Kong.
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‘First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation
clause?’1
32is suggested in the Zuma and Makwanyane judgments that the two-stage approach may
It
call for a broad interpretation of the right at the first stage, qualified only at the second stage.2
While it is doubtless true that the presence of a general limitation clause defers questions of
whether infringements of rights are justified to the second stage of analysis, it is submitted
that this does not obviate the need for the careful delineation of rights at the first stage. The
very question of whether a right has been infringed presupposes a definition of that right.
Whereas the first stage involves demarcating the boundaries of a particular right, the second
is concerned with scrutinizing incursions into those predefined boundaries. It is therefore
suggested that the first stage aims to establish the content of the right in question, whereas
the second is astutely concerned with considerations justifying the limitation of the right. At
the first stage the ambit of the right is defined with reference to the terms in which the right
is cast and to the constitutional values which are served by entrenching that right in the Bill
of Rights. The second stage measures the constitutional values thus articulated against
competing rights, values and ideals and against the requirements of social policy.
(a)
Stage One ---- the content of the right
The initial inquiry at the first stage is whether the law or act under scrutiny impinges at all
on the domain of the right at issue. This is the point at which the ambit of the right itself must
be defined. This involves articulating the values which the right seeks to uphold and
identifying the interests which it seeks to protect; in other words, a purposive interpretation
of the right.3 As O’Regan J points out, purposive interpretation requires at times that a
generous meaning be given to the right in question and, at other times, a narrower or specific
meaning.4 A broad interpretation is not necessarily that which best comports with the values
underlying the right itself.5 For example, most human activities, including acts of physical
violence, can be seen as a form of ‘expression’. Yet the protection of the freedom to commit
such acts is not the purpose of s 15 of the Constitution. Hence it is not the case that the
freedom to commit such acts is protected by s 15, but that the limitation of the freedom is
permissible in terms of s 33. Were the act found to be covered by s 15, its limitation would
clearly be justified. But that is not the point. The point is that the rights enshrined in Chapter 3
give expression to the most profound commitments of our society. Section 35(1) makes it
1
S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 21 (Kentridge AJ); see also S v
Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 100 (Chaskalson P) and 208--10 (Kriegler J);
S v Williams & others 1995 (3) SA 632 (CC), 1995 (7) BCLR 861 (CC) at para 54 (Langa J); Coetzee v Government
of South Africa & others; Matiso v Commanding Officer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC) at para 9
(Kriegler J, for the majority); S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC) at para 9.
2
S v Zuma & others at para 21 (Kentridge AJ); S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665
(CC) at para 100 (Chaskalson P); cf Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC)
at paras 82, 90 (Ackermann J), but see Chaskalson P at paras 181--4.
3
Cf R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 359--60, approved in S v Zuma 1995 (2) SA 642 (CC),
1995 (4) BCLR 401 (CC) at para 15.
4
S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 325.
5
As Dickson J points out in R v Big M Drug Mart Ltd 18 DLR (4th) at 360, while constitutional interpretation
must aim to secure for individuals the full benefit of constitutional protection, it is important not to overshoot the
actual purpose of the right or freedom in question.
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clear that courts interpreting the provisions of Chapter 3 must promote these underlying
values and commitments. Together with the language in which each right is framed, these
values serve to establish the scope and content of each right.
33 It is therefore our submission that although the presence of a general limitation clause
may mean that the interpretation at the first stage is broader than it would be were there no
second stage at all, certain types of interest and activity are simply beyond the scope of the
protection offered by the right and must be screened out at the first stage.1
In giving meaning to a particular right at the first stage it will often be useful to have
regard to associated rights.2 This is not the stage, however, at which potentially competing
rights should be considered.3 Only at the second stage of the inquiry should competing rights
be balanced. The scope of the right is not to be defined, at the first stage of the inquiry, by
narrowing or qualifying the right in order to accommodate the exercise of another right.4 Any
process of mutual modification of rights should take place at the second stage, and through
the application of the provisions of the limitation clause. On this approach the courts need
not determine a general hierarchy of rights in the abstract.5 They need only balance competing
rights in the context of a specific law or act and in a specific factual context.6
If the interest in question does fall within the domain of a particular right, the next question
is whether the law or act of which complaint is made in fact encroaches upon that right. This
aspect of the inquiry will be satisfied by demonstrating that either the purpose or the effect
of the impugned law or act is to encroach upon the right.7 Only if this is established does the
inquiry proceed to the second stage.
(b)
Stage Two ---- limitation of rights
If the law or conduct impugned has been found at the first stage to infringe a Chapter 3 right,
the question at the second stage is whether the limitation thus effected is permissible in that
it is reasonable, justifiable in an open and democratic society based on freedom and equality,
and does not negate the essential content of the right in question. In respect of certain rights8
as well as those aspects of other rights9 which relate to free and fair political activity the
limitation must, in addition to being reasonable, be necessary.
In assessing whether the limitation of a particular right is permissible in terms of s 33(1)
close attention must be paid to the values which the right seeks to uphold and protect, as
identified at the first stage of the inquiry. The nature and importance of such values will affect
the extent to which limitations of the right in question can be tolerated. Hence even where
1
The function of the Constitution is to articulate and give effect to certain substantive values, not to protect all
interests and activities.
2
S v Makwanyane & another at paras 10 and 95 (Chaskalson P).
3
But see Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 607E--F.
4
R v Keegstra [1991] 3 CRR (2d) 193 (SCC) at 218 (Dickson CJ), 289--91(McLachlin J).
5
Hogg Constitutional Law of Canada sec 33.7(g).
6
See Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 607B--608B.
7
R v Big M Drug Mart (1985) 18 DLR (4th) 321 (SCC) at 350; In re Munhumeso & others 1995 (1) SA 551
(ZS) at 561D--E.
8
The rights entrenched in ss 10, 11, 12, 14(1), 21, 25, 30(1)(d), 30(1)(e) and 30(2).
9
The rights entrenched in ss 15, 16, 17, 18, 23 and 24.
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the necessity standard does not apply the standard of justification under s 33(1) will differ in
relation to different rights. Important too will be the type of infringement at issue and its severity.1
34 At the first stage the ambit of the right is defined with reference to its underlying values
and the purposes it serves. At the second stage the value of the right as defined is balanced
against the social and political objects which may require its limitation. In certain cases
competing rights must also be balanced at the second stage.2 This balancing exercise is the
distinctive feature of the second stage of constitutional analysis. Whatever compromises are
struck at this stage, they must serve the values of an open and democratic society based on
freedom and equality. Where these values are themselves threatened by the limitation of a
right the compromise is not permissible in terms of s 33(1) and there is an unlawful violation
of a fundamental right.
(c)
Onus and standard of proof at each stage
In accordance with well-established principles of law, the onus of proving the infringement
of a fundamental right rests with the party who alleges such an infringement.3 We have
suggested that the inquiry at the first stage separates into two related questions. The first is
essentially a normative question. The court must decide whether the protection afforded by
the right in question extends to the interest which is allegedly subject to interference. In some
cases this will be so clear as to obviate the need for inquiry. In others it will be a complex
and difficult question of law. As with any question of law, the party who claims that the
interest is protected by the right must persuade the court that its view of the law is correct.
This is not an onus properly speaking, but a burden of legal persuasion. If the court is
persuaded that the interest at stake is protected by a particular right, then the substantive
question arises of whether the law or conduct impugned interferes with that interest and thus
infringes a fundamental right. The onus is upon the complainant to establish that, as a matter
of fact, there is an infringement. This must be proved on a balance of probabilities.
The onus of proving that the limit on the fundamental right is permissible in terms of
s 33(1) rests upon the party seeking to uphold the limitation.4 Here again, as at the first stage,
there are two aspects to a s 33(1) inquiry. The first is normative: as a matter of law, is the
basis upon which the party is seeking to uphold the limitation reasonable and justifiable? In
other words, if all the facts alleged by that party are proved, does the limitation meet the
requirements of s 33(1)? The second is an evidential question ---- has the party seeking to
uphold the limit established as a matter of fact that the requirements of s 33(1) are met? In regard
to the normative question, the party who seeks to justify the limitation carries a burden of
legal persuasion. In regard to the factual question, that party bears an onus properly speaking.
1
S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 104; S v Bhulwana; S v Gwadiso
1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at para 18; Coetzee v Government of South Africa; Matiso v
Commanding Officer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC) at paras 45--6 (Sachs J, concurring in
the order).
2
See Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 607B--608B.
3
Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 640H--J, 1995 (1) BCLR 75 (E).
4
S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 102; Qozeleni v Minister of Law
and Order & another 1994 (3) SA 625 (E) at 640H--641C, 1995 (1) BCLR 75 (E); Khala v Minister of Safety and
Security 1994 (4) SA 218 (W) at 228D--I; cf R v Oakes (1986) 26 DLR (4th) 200 at 225.
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35 The standard to be met by the party who would justify a limitation is proof on a
preponderance of probabilities. Dickson CJC pointed out in the case of R v Oakes1 that there
are degrees of probability within that standard2 and that, in relation to the justification of an
infringement of a fundamental right, a very high degree of probability is required:
‘Where evidence is required in order to prove the constituent elements of a s 1 inquiry, and this will
generally be the case, it should be cogent and persuasive and make clear to the court the
consequences of imposing or not imposing the limit.’3
THE FINAL CONSTITUTION
All references to the Constitution, sections, Chapters, and Schedules in this part of this
chapter, from § 11.11 up to and including § 11.13, must be taken as references to the
final Constitution unless another Constitution or statute is specifically referred to.
11.11 THE IMPORTANCE OF THE CERTIFICATION JUDGMENTS
Like the interim Constitution, the final Constitution is shaped by the history of the transition
from apartheid government to a constitutional democracy. The interim Constitution was the
product of negotiation and compromise between parties with competing and conflicting
interests in and conceptions of how South Africa ought to be governed in the future. Part of
that compromise was embodied in IC Chapter 5, which dealt with the adoption of the final
Constitution.4 In particular, IC s 71(1)(a) required the new constitutional text to comply with
the Constitutional Principles set out in IC Schedule 4. The Constitutional Court was required
to certify that all the provisions of the text of the Constitution passed by the Constitutional
Assembly complied with the Constitutional Principles.5
The first text of the Constitution was passed by the Constitutional Assembly on 8 May
1996 and considered by the Constitutional Court during July and August.6 In its judgment
the Constitutional Court found that certain provisions of the Constitution did not comport
with the Constitutional Principles. Certification was therefore withheld. The offending
provisions were thereafter recast by the Constitutional Assembly, which passed the relevant
amendments to the text of the Constitution in October 1996. The Constitutional Court judged
that, as amended, the text of the Constitution met the strictures of the Constitutional
Principles. It certified the Constitution in December 1996.7
1
(1986) 26 DLR (4th) 200.
2
Cf Bater v Bater [1950] 2 All ER 458 (CA) at 459 per Denning LJ.
3
(1986) 26 DLR (4th) 200 at 226--7.
4
The political history of the interim Constitution and the adoption of the Constitutional Principles are
summarized in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1997 (1) BCLR 1 (CC) (‘the first certification judgment’)
at paras 5--19; see also above, Klug ‘History’ ch 2.
5
Section 71(2).
6
Oral argument was heard early in July and the judgment withholding certification of the final Constitution
delivered on 6 September 1996.
7
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution
of the Republic of South Africa, 1996 1997 (2) SA 97 (CC), 1997 (1) BCLR 1 (CC) (‘the second certification
judgment’).
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The certification judgments, especially the first, are important in the interpretation of those
provisions which they consider. This is because the approval of certain provisions of the final
text was dependent on the particular interpretation of those provisions adopted by the court.
Inevitably, certain clauses of the draft Constitution were capable of more than one reasonable
interpretation. The court adopted the principle that, where one of the possible meanings of
a clause complied with the Constitutional Principles but another did not, the interpretation
to be adopted was that which would facilitate certification.1
36 The court made the significance of this approach clear:
‘Such an approach has one important consequence. Certification based on a particular interpretation
carries with it the implication that if the alternative construction were correct the certification by
the court in terms of IC s 71 might have been withheld. In the result, a future court should approach
the meaning of the relevant provision of the NT on the basis that the meaning assigned to it by the
Constitutional Court in the certification process is its correct interpretation and should not be
departed from save in the most compelling circumstances.2 If it were otherwise, an anomalous and
unintended consequence would follow. A court of competent jurisdiction might in the future give
a meaning to the relevant part of the NT which would have made that part of the NT not certifiable
in terms of IC s 71 at the time of the certification process, but there would have been no further
opportunity in the interim to refuse a certification of the NT on that ground. This kind of anomaly
must be avoided ---- and will be ---- if the courts accept the approach which we have suggested in
this paragraph.’3
In approaching the interpretation of any provision of the Constitution courts are therefore
bound to follow the interpretation which the Constitutional Court placed on that provision
in the certification judgments in order to facilitate certification.4 The logic of the passage
quoted above ought to apply to the entire text of the Constitution and not only to those
provisions which were discussed in the certification judgments. Given that the present text
of the Constitution was ultimately certified, every provision of that text must be taken to
comply with the Constitutional Principles. It follows that where there is more than one
reasonable interpretation of a provision which was not specifically considered in the
certification judgments, it is impermissible to attribute to the provision a meaning which
would have failed to comply with the Constitutional Principles and would thereby have
rendered the entire text uncertifiable.5 This, of course, is an application of the principle
underlying the presumption of constitutionality applied in statutory interpretation, and
discussed above, § 11.3(b).
1
The first certification judgment at para 42.
2
One can imagine a situation in which a court is faced with two different interpretations of a particular clause,
either of which would have facilitated certification, but one of which was not considered by the Constitutional Court
in its judgment (our footnote).
3
The first certification judgment at para 43.
4
This principle was referred to and applied by the Constitutional Court in Premier, Western Cape v President of
the Republic of South Africa & others 1999 (3) SA 657 (CC), 1999 (4) BCLR 382 (CC) at paras 17--19 in evaluating
(and rejecting) the applicant’s contention that its interpretation of the Constitution in relation to the executive powers
of the provinces and their legitimate autonomy was the only interpretation consistent with the certification
judgments.
5
This principle appears to have been accepted by the Constitutional Court in MEC for Development Planning
and Local Government in Gauteng v Democratic Party & others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 855 (CC).
See paras 54, 55 and 59 in particular.
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11.12 INTERPRETING THE CONSTITUTION AS A WHOLE
(a)
The Preamble
37 Constitution begins with a Preamble which gives expression to the fundamental values
The
and purposes of the Constitution as a whole. The Preamble locates the Constitution in its
historical context. It is clear from the Preamble that we are dealing now with a text which is
foundational to a new society, no longer with a document which bridges the transition from
the old to the new. Like the Preamble to the interim Constitution, the Preamble to the
Constitution is bound to figure prominently in judicial interpretations of the Constitution.1
There is no Afterword to the Constitution.
The founding provisions of the Constitution are set out in Chapter 1, and the basic values
and commitments which underpin the polity are expressed in s 1. This explicit acknowledgement of the principles which found the South African constitutional democracy is important
to constitutional interpretation because it provides an unequivocal statement of the fundamental values which are to inform that exercise.
(b)
The signed text
The English text of the Constitution was signed by the President.2 As discussed above,
§ 11.2(b), now that there are eleven official languages it is not clear that, in cases of doubt,
it is the text signed by the President which prevails. Section 240 specifically provides,
however, that if there is inconsistency between different texts of the Constitution, the English
text prevails.
(c)
Definitions and interpretation
(i)
The presumption of constitutionality
A number of general provisions of the Constitution deals with questions of interpretation.
The Constitution has no provision similar in its terms to IC s 232(3).3 As discussed above,
IC s 232(3) explicitly conferred upon statutes a presumption of constitutional validity. There
can be little doubt that the presumption of constitutionality, as a principle of statutory
interpretation, applies even in the absence of an explicit provision to that effect in the
Constitution.4 Indeed, IC s 232(3) and its counterpart, IC s 35(2), in the interim Bill of Rights,
gave expression to an existing principle of statutory interpretation.5 In Roman-Dutch law a
principle akin to the presumption of constitutionality is expressed in the maxim ‘in ambigua
voce legis ea potius accipienda est significatio, quae vitio caret’ ---- where a statute is
ambiguous, the meaning which avoids invalidity of the provision in question is to be
preferred. In our submission the presumption of constitutionality goes somewhat further ----
1
See, for example, Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC)
at para 20; see above, § 11(2)(a).
2
On the question of the significance of the signed text in the present dispensation, see above, § 11.2(b).
3
IC s 232(3) is considered above, § 11.2(c).
4
See De Lange v Smuts NO & others 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC) at para 85.
5
See the discussion above, § 11.3(b).
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the requirement that laws be interpreted to accord, if reasonably possible, with the
Constitution does not necessarily depend on those laws being ambiguous.
(ii)
International law
38 first three sections of the General Provisions chapter deal with international law and
The
illustrate the enhanced importance of international law in South African legal practice.1
Section 232 provides that courts interpreting legislation must always prefer any reasonable interpretation which is consistent with international law over an interpretation which is
inconsistent with international law. This imports the norms and values of international law
into the very centre of the interpretation of South African laws. It invokes a principle which
is essentially similar to the presumption of constitutionality in statutory interpretation.2 The
invocation of the presumption of consistency with international law further illustrates the
enhanced importance of international law in South African law in general, and not simply in
our human rights law.3 One consequence of the presumption of constitutionality is that
meanings which were attributed to statutory provisions before the Constitution came into
effect may no longer be authoritative.4 The same consequence follows from the requirement
that statutes be interpreted so as to comport, if possible, with international law.5
There is an important difference between interpreting a statute in the light of the
Constitution and interpreting it in the light of international law. If a statute cannot reasonably
be interpreted so as comport with the requirements of the Constitution, it must be declared
invalid to the extent of its invalidity.6 If a meaning consistent with international law cannot
reasonably be attributed to a statute, the statute may nevertheless remain valid and binding.
In Azanian People’s Organisation (AZAPO) v President of the Republic of South Africa
AZAPO and the relatives of certain victims of apartheid atrocities sought to set aside s 20(7)
of the Promotion of National Unity and Reconciliation Act7 (‘the TRC Act’) on the
ground that it was inconsistent with IC s 22, which enshrined the right of every person
to have justiciable disputes settled by a court of law or, where appropriate, another independent or impartial forum.8 In advancing their argument the applicants contended that
international law required the state to prosecute those responsible for gross violations of
human rights, and that international law was breached by s 20(7) of the TRC Act, which
1
See also s 39(1)(b). Compare IC s 35(1) discussed above, § 11.3(a); see also below, ch 13.
2
The presumption of constitutionality is discussed above, §§ 11.2(c) and 11.3(b) and (c).
3
Section 39(1)(b) requires any court, tribunal or forum interpreting the Bill of Rights to consider international
law. IC s 35(1) requires judges interpreting the interim Bill of Rights to have regard, where applicable, to the relevant
public international law. See the discussion of IC s 35(1) above, § 11.3(a).
4
See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) per Ackermann J at paras 59--64; cf
Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 603G--H, 1996 (6) BCLR 836 (W); see also the discussion
of this point above, § 11.3(b) and (c) and the cases there cited.
5
In Azanian People’s Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC),
1996 (8) BCLR 1015 (CC) at para 26 the court referred to the principle that the lawmakers of the Constitution
should not lightly be presumed to authorize any law which might constitute a breach of the obligations of the state
in terms of international law. Section 232 of the Constitution explicitly includes within the Constitution itself the
presumption that the legislature would not authorize legislation which is inconsistent with international law.
6
7
See FC s 172(1)(a).
Act 34 of 1995.
8
1996 (4) SA 562 (CC), 1996 (8) BCLR 1015 (CC) at paras 25--32.
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authorized amnesty for such offences.1 The Constitutional Court found s 20(7) of the TRC
Act to be authorized by the interim Constitution and therefore valid. It rejected the argument
based on international law on three grounds. First, it held that whether or not international
law imposes a different duty from that imposed by the interim Constitution was irrelevant to
the issue before the court, namely whether s 20(7) of the TRC Act was inconsistent with the
interim Constitution. For the purposes of this inquiry, international law was relevant only in
interpreting the interim Constitution itself. This is because of the presumption that the makers
of the Constitution should not lightly be presumed to have authorized legislation in conflict
with South Africa’s obligations in terms of international law. Secondly, it doubted the
applicability to the South African conflict of the international-law instruments invoked by
the applicants. Thirdly, in the light of the context in which the TRC Act was promulgated the
court did not consider that there was any breach of the obligations owed in terms of the
instruments of public international law relied on by the applicants.
39 The court’s analysis and application of the public international law in question has
been incisively criticized.2 Hopefully, decisions dealing with international law under the
Constitution will be more rigorous in their analysis and application of international law.
(iii) Definitions
Section 239 deals with the definition of certain terms used in the Constitution. The definition
of the term ‘organ of state’ is noteworthy, as it is wider in its ambit than the definition of that
term in the interim Constitution.3
(iv) Interpretation of existing legislation
The Constitution creates a single national state with new national, provincial and local
structures, institutions and boundaries. Legislation which existed prior to the Constitution
coming into force will frequently make reference to pre-constitutional structures, institutions
and boundaries. Section 3 of Schedule 6, which deals with transitional arrangements,
therefore sets out the manner in which those pre-constitutional references are to be construed.
(d)
Drafting history
The relevance and admissibility of the drafting history of the Constitution is equivalent to
that of the interim Constitution, discussed above, § 11.2(d). The particular significance of
the role and function of the Constitutional Principles, and the certification judgments, is
considered above, § 11.1.
One noteworthy feature of the Constitution is that it is drafted in what purports to be ‘plain
English’. For example, the word ‘must’ is used where a statute would usually say ‘shall’.
1
1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at para 25.
2
See John Dugard ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered
Question?’ (1997) 13 SAJHR 258; see also Claudia Braude & Derek Spitz ‘Memory and the Spectre of International
Justice: A Comment on AZAPO’ (1997) 13 SAJHR 269; cf below, ch 13.
3
See above, § 11.2(c). Depending on how broad an interpretation is given to FC s 8(2), the wider definition of
the term ‘organ of state’ could have important consequences for the question of who is bound by the Bill of Rights.
See the discussion of s 8 above, ch 10.
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The attempt to avoid conventional legal terminology and syntax is particularly apparent in
the Bill of Rights. For instance, the usual phrase ‘every person’ has been replaced with the
word ‘everyone’, and ‘no person’ is replaced with ‘no one’. In certain instances, plain English
precludes ordinary English grammar. Section 24(a), for example, states that ‘Everyone has
the right to an environment that is not harmful to their health and well-being’.
40 Whether these sorts of changes to terminology usually used in legislative drafting achieves
the desired aims of simplicity and intelligibility is questionable. It is patently desirable for
all laws, especially the Constitution, to be drafted in a language and style which is as simple
and clear as possible. This is the mark of a well-drafted as opposed to a badly drafted law.
Nevertheless, the value, or even the wisdom, of some of the devices used in the pursuit of
plain English is doubtful. There is nothing complicated or unclear about the words ‘every
person’, or the word ‘shall’. A non-lawyer can understand such words, and they have a very
precise meaning for lawyers and judicial officers, who are those most frequently and directly
involved in constitutional interpretation. When commonly used, well-understood words are
replaced by words less commonly used in law-making, confusion could result. As mentioned
above, the word ‘everyone’ is used each time that the words ‘every person’ were used in the
formulation of the equivalent right in the interim Constitution. This is simply a matter of
style and drafting, and it is clear both from the drafting history and from the text itself that
no particular significance may properly be attributed to this change in respect of any one
right. In the context of the right to life, however, the word ‘person’ conveyed a particular
sense, and carried with it an authoritative legal construction of personhood which is not
similarly implicit in the word ‘everyone’.1 It is inevitable that those who argue that the right
to life in s 11 extends to a foetus will attempt to persuade the courts that the present
formulation of s 11 favours their argument. Regardless of the substantive answer to the
question of whether a foetus is a bearer of constitutional rights, we submit that the historical
background to the change in the formulation of the right to life makes it clear that the
formulation used was not intended to influence the answer to that question.
(e)
Implied provisions
Whether ---- and, if so, under what circumstances ---- it would be permissible to imply into
the constitutional text unexpressed provisions is a complex matter which will be considered
over time. Where ordinary statutes are concerned it is well known that before one can read
into a statute by implication that implication must be necessary ‘in the sense that without it
effect cannot be given to the statute as it stands.’2 In other words, an implication must be
necessary ‘to realise the ostensible legislative intention or to make the Act workable’.3
At this stage we seek to do no more than alert the reader to certain themes which are
beginning to emerge on the question of implied provisions in a constitutional context. The
first pertains to efforts to imply powers which are not expressed in the constitutional text. In
this regard, the Constitutional Court has said, not surprisingly, that a power cannot be implied
1
See the discussion of this question below, chs 15 and 16.
2
Rennie NO v Gordon & another NNO 1988 (1) SA 1 (A) at 22E.
3
Palvie v Motale Bus Service (Pty) Ltd 1993 (4) SA 742 (A) at 749C.
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if it contradicts an express provision of the Constitution.1 The second theme concerns the
circumstances under which terms may be implied into the text more generally. Thus, for
example, in considering whether IC s 22, which guarantees the right of access to courts, had
the effect of constitutionalizing civil procedure by implication, the Constitutional Court
concluded that the interim Constitution as a whole, and the section in particular, were
workable and achieved the ostensible legislative intention without the need to imply a
constitutional right to fairness in civil litigation.2 In Executive Council, Western Cape
Legislature v President of the Republic of South Africa,3 by contrast, the Constitutional Court
held that it was a necessary implication of the interim Constitution that Parliament should
have the power to delegate subordinate legislative powers to the executive. This, Chaskalson
P said, ‘was necessary to give effect to the primary legislative power of Parliament’.
11.13 THE BILL OF RIGHTS
41
Section
39 of the Constitution deals with the interpretation of the Bill of Rights.
Section 39(1) provides:
‘When interpreting the Bill of Rights, a court, tribunal or forum ---(a) must promote the values that underlie an open and democratic society based on human dignity,
equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.’
Section 39(1) is similar in essence to IC s 35(1), discussed above, § 11.3(a). Whereas
IC s 35(1) referred only to courts of law, s 39(1) refers to ‘a court, tribunal or forum’. This
accords with the broader reach of the Bill of Rights and the fact that the interpretation of the
Bill of Rights is not the exclusive domain of courts of law but forms an important component
of the interpretation, application and development of the law at every level.
Section 39(2) provides:
‘When interpreting any legislation, and when developing the common law or customary law, every
court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’
This provision is similar in essence to IC s 35(3), discussed above, § 11.3(c), save that,
like s 39(1), it applies to ‘every court, tribunal or forum’.4
There is, however, an important difference. IC s 35(3) required a court, when interpreting
any law, and applying and developing the common law and customary law, to have ‘due
regard’ to the spirit, purport and objects of the Chapter on fundamental rights. Section 39(2)
provides that a court, tribunal or forum interpreting legislation and developing the common
law or customary law ‘must promote’ the spirit, purport and objects of the Bill of Rights.
To ‘promote’ in this context means to further or advance. It means more than simply taking
1
Premier, Western Cape v President of the Republic of South Africa & others 1999 (3) SA 657 (CC), 1999 (4)
BCLR 382 (CC) at para 12.
2
Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 105.
3
1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 62.
4
It should be noted that in Davis v Tip NO 1996 (1) SA 1152 (W), 1996 (6) BCLR 807 (W) Nugent J held that
IC Chapter 3 applied to the proceedings of a disciplinary tribunal.
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into proper account. Hence s 39(2) places an even stronger obligation on judicial bodies
to advance the values of the Bill of Rights in the course of adjudication.1 It is important to
stress that both IC s 35(3) and FC s 39(2) confer a jurisdiction on judicial bodies which is
not merely permissive or optional but which must be exercised.2
42 Section 39(3) provides:
‘The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised
or conferred by common law, customary or legislation, to the extent that they are consistent with
the Bill.’
This section is equivalent to the provision to the same effect contained in IC s 33(3). It
makes it clear that the Bill of Rights, a statement of fundamental constitutional rights, is not
exhaustive of the rights to which those protected by the Bill of Rights are entitled. These may
include a range of common-law, customary-law and legislative rights and entitlements.
There is no equivalent in s 39 to IC s 35(2), discussed above, § 11.3(b). As we submitted
above with reference to the fact that the Constitution contains no equivalent provision to
IC s 232(3), the presumption of consistency with the Bill of Rights exists independently of
its expression in IC s 35(2). The presumption therefore applies to the interpretation of laws
under the Bill of Rights.3
11.14 TWO-STAGE ANALYSIS UNDER THE FINAL CONSTITUTION
The two-stage approach to constitutional analysis under the interim Constitution remains the
proper approach to constitutional analysis under the Constitution. The reader is therefore
referred to the discussion of two-stage analysis in § 11.10 above.
(a)
Stage One ---- the content of the right
The reader is referred to § 11.10(a) above.
Where questions concerning the content of fundamental rights are concerned, it is
important to emphasize a distinction between the ways in which different fundamental rights
may be exercised or enjoyed. On the one hand, there are rights which may be exercised quite
independently of any conduct by the state, and which may be enjoyed precisely because the
state is required to refrain from acting. On the other hand, there are rights, for example, the
right to vote, which are positive rights in the sense that their exercise and enjoyment requires
1
See S v Letaoane 1997 (11) BCLR 1581 (W). For application of the injunction contained in FC s 39(2) see
S v S 1999 (1) SACR 608 (W) at 612g--j, where Nugent J, with whom Schwartzman J concurred, interpreted s 304(4)
of the Criminal Procedure Act in light of the constitutional right to a fair trial (which includes the right of
appeal or review by a higher court) entrenched in FC s 35(3). The court held that the section, which provides for
review of matters which are not subject to review in the ordinary course, was quite capable of an interpretation
which rendered subject to review a decision by a magistrate to put into operation a suspended sentence.
2
The question of the scope of IC s 35(3) and its impact upon pre-constitutional precedent has been considered
in the context of the impact of freedom of expression on the common-law rules of defamation. See below, § 20.8(b).
3
See, for example, Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326
(LAC) at paras 25--8 (the need to interpret legislation in a manner consistent with the Constitution led the Labour
Appeal Court to give to the word ‘despite’ in s 158(1)(g) of the Labour Relations Act 66 of 1995 the meaning ‘subject
to’ even though the latter meaning was not the most obvious meaning).
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the government to take positive steps.1 Two recent decisions of the Constitutional Court have
important implications for the inquiry into the content of the right where that right itself
imposes obligations on Parliament to legislate in order to secure its exercise.
43 Shortly before the national elections scheduled for June 1999 were to be held, two political
parties launched separate applications challenging various provisions of the Electoral Act 73
of 1998.2 Those provisions limited the category of identity document that could validly be
used for the purposes of registration and voting in the elections. Significant numbers of
otherwise eligible voters were not in possession of the required documents and were required
to obtain them within a short period of time if they wanted to vote in the elections. Many of
these potential voters did, however, hold other identity documents which were legally valid
for all other purposes. The constitutional complaint was that the statutory restriction of the
category of identity documents which could be used for registration and voting infringed
the fundamental right to vote protected by s 19(3) of the Constitution. In determining this
challenge the Constitutional Court was required to consider the content of the right to vote
protected by s 19(3) of the Constitution. A great deal turned on the manner in which the
content of the right was defined. If regulation of the right to vote by means, for example, of
limiting the category of identity document that could validly be used, constituted a limitation
on or infringement of the right to vote, then the state would have been required to justify that
limitation in terms of s 36(1), the limitation clause. If, by contrast, the content of the right
itself included measures to regulate its exercise, then those measures did not themselves limit
the right and limitations analysis would not apply. How the content of the right to vote was
characterized turned out to be decisive in these election cases.
In the New National Party case Yacoob J, writing for the majority, held that the right to
vote ‘without proper arrangements for its effective exercise does nothing for a democracy;
it is both empty and useless’.3 Consequently, the content of the right to vote, protected
by s 19(3), had to be understood in relation to the right to free and fair elections entrenched
in s 19(2). As Yacoob J said:
‘The right to vote is, of course, indispensable to, and empty without, the right to free and fair
elections; the latter gives content and meaning to the former. The right to free and fair elections
underlines the importance of the exercise of the right to vote and the requirement that every election
should be fair has implications for the way in which the right to vote can be given more substantive
content and legitimately exercised. Two of these implications are material for this case: each citizen
1
The distinction between negative rights ---- the enjoyment of which depends upon government inaction ---- and
positive rights ---- the enjoyment of which imposes on the state a positive duty to legislate ---- is drawn clearly in
O’Regan J’s minority judgment in New National Party of South Africa v Government of the Republic of South Africa
& others 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) at para 118. The distinction is also clearly at work in
Yacoob J’s judgment on behalf of the majority in the same case.
2
New National Party of South Africa v Government of the Republic of South Africa & others 1999 (3) SA 191
(CC), 1999 (5) BCLR 489 (CC); Democratic Party v Minister of Home Affairs & another 1999 (3) SA 254 (CC),
1999 (6) BCLR 607 (CC).
3
New National Party at para 11.
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entitled to do so must not vote more than once in any election; any person not entitled to vote must
not be permitted to do so. The extent to which these deviations occur will have an impact on the
fairness of the election. This means that the regulation of the exercise of the right to vote is necessary
so that these deviations can be eliminated or restricted in order to ensure the proper implementation
of the right to vote.’1
44 court therefore made use of the right to free and fair elections in order to give content
The
to the right to vote. As a result, it concluded that the right to vote included within it the taking
of measures necessary to give effect to the right by regulating its exercise and giving it
substantive content. Having thus defined the content of the right, the court then analysed the
statutory provisions under challenge. It did so not on the basis that the impugned provisions
limited the right to vote and therefore required justification under the limitation clause, but
rather that they constituted measures necessary to regulate the exercise of the right to vote
and formed part of the right itself. The content of the right therefore included both the right
to vote and the measures necessary to exercise that right.
In the Democratic Party case Goldstone J, writing for the majority, reiterated the
constitutional framework adopted in the New National Party case, namely that the impugned
provisions of the Electoral Act do not constitute limitations on the rights relied on and that
limitations analysis was accordingly unnecessary.2
Even though the right to vote included measures regulating its exercise, this could not
mean that any measures at all would be permissible. It remained, then, to determine and apply
the appropriate standard of review to the measures in question. In the New National Party
case Yacoob J concluded that what was required of the statutory measures was that they must
be rationally related to the achievement of a legitimate governmental purpose.3 This, we
submit, amounts to a low level of constitutional scrutiny of the measures, and a deferential
approach to legislative choice. Only arbitrary or irrational measures regulating the exercise
of the right to vote would fail to satisfy this standard.
But the court’s definition of the content of the right did not, we submit, compel it to adopt
the deferential standard of mere rationality. Nevertheless, the majority concluded that it was
fundamental to the doctrine of separation of powers and to the proper role of the courts in a
democracy that courts do not review Acts of Parliament on the grounds that they are
unreasonable.4 It was with the adoption by the majority of mere rationality review that it and
O’Regan J parted company in the election cases. Although the learned judge agreed that it
was a misunderstanding of the right to vote to consider all measures regulating elections to
be a limitation of that right, she disagreed with the deferential standard adopted by the
majority. In a strong dissent O’Regan J acknowledged that questions of reasonableness and
justifi- ability are generally reserved for consideration once it has been demonstrated that a
fundamental right had been infringed. But certain rights, the learned judge reasoned,
including the right to free and fair elections, contained certain ‘broad equitable defining
1
New National Party at para 12.
2
Democratic Party at para 9.
3
New National Party at para 19 read with paras 24 and 25.
4
New National Party at para 24.
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INTERPRETATION
characteristics’ making an inquiry into reasonableness (and not merely a standard of
rationality review) relevant even at the threshold stage of considering the content of the right.1
The proper approach, O’Regan J said, ‘is to require legislative regulation of the right to vote
to be reasonable’.2 Relevant considerations include the nature of the regulation, its purpose
and its likely effect on the right to vote. These considerations were to be considered ‘in the
light of the centrality of free and fair elections and the right to vote in the democratic order
which our Constitution establishes’.3 The question was whether the measure introduced to
restrict the range of identity documents was reasonable in the circumstances in which
Parliament chose to adopt it.4 The learned judge, applying the standard of reasonableness to
the question, concluded:
‘The effect of it is that it is not necessary to undertake a full and separate limitations analysis. As I
have found, the government purposes suggested, while legitimate, do not weigh heavily in the scales
of justification. Against that, one has the fact that a large number of voters who had lawful and valid
forms of identification have been compelled to obtain other forms of identification in a short period
of time in order to be able to register and vote. Failure to obtain the prescribed forms of identification
will result in disenfranchisement. In my view, this result betrays a disregard for the importance of
the right to vote in free and fair elections in a country where such a right is only in its infancy. The
provisions cannot, in my view, be considered reasonable or justifiable in the circumstances.’5
45 As we have pointed out above, all members of the court in the election cases agreed that
the content of the right to vote included measures designed to regulate its exercise. Such
measures were not limitations on the right but necessary to give it substance. This, we submit,
was because, unlike certain other fundamental rights, the right to vote was secured not by
requiring the state to refrain from acting but by imposing on the state a positive duty to
legislate. In this context the majority emphasized its concern with the proper role of courts
in a democracy and adopted a deferential approach to the measures in question. An inquiry
into reasonableness, it held, would only be appropriate if the legislation under consideration,
although rational, nevertheless infringed a fundamental right. Where legislation was
arbitrary, by contrast, review would be competent because arbitrariness is inconsistent with
the rule of law.6 By contrast the minority judgment adopted a standard of review for
reasonableness. We submit that this standard of reasonableness evinces a deep concern that
any other, more deferential, approach would be insufficiently protective of the right to vote
upon which democratic government is based and from which it draws its fundamental claims
to legitimacy. For the minority, the constitutionality of the measures in question could not
be determined at the high level of generality or abstraction implied by invoking the principle
of the rule of law.
1
2
3
4
5
6
New National Party at para 123.
New National Party at para 127.
New National Party at para 128.
New National Party at para 128.
New National Party at para 160.
New National Party at para 24.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
The majority decision seeks to protect democratic governance by limiting the extent of
judicial intervention into the domain of legislative choices except where fundamental rights
are infringed. The minority judgment seeks to advance the same protective end by applying
more rigorous scrutiny to measures that restrict the exercise of the right to vote. It does so,
we submit, precisely because of a concern that what is at stake in the election cases is
something even more fundamental than protecting the free exercise of legislative choice in
this area.
(b)
Stage Two ---- limitation of rights
The reader is referred to § 11.10(b) above.
46
The approach to the limitation of rights expounded under the interim Constitution in
S v Makwanyane & another1 required a weighing up of competing values and an assessment
based on proportionality. That approach has not been altered, in any material respect, by
s 36(1) of the Constitution, except that s 36(1)(e) expressly requires that less restrictive means
to achieve the legislative purpose in question must be taken into account.2
(c)
Onus and standard of proof at each stage
The reader is referred to § 11.10(c) above.
1
1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC), 1995 (2) SACR 1 (CC) at para 104.
2
De Lange v Smuts NO & others 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC) at paras 87--8; National
Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC), 1998 (12) BCLR 1517 (CC),
1998 (2) SACR 556 (CC) at paras 33--5.
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