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South African Journal on Human Rights Volume 17, 2001 - Issue 1
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Original Articles

A Bridge Too Far? History as Context in the Interpretation of the South African Constitution

Pierre de VosDepartment of Public Law, University of the Western Cape. This article is a revised version of a paper delivered at a colloquium organised by the Research Unit for Constitutional and Legal Interpretation, held on 17–18 August 2000 at the University of Stellenbosch. I would like to thank my colleague Jacques de Ville as well as all the participants in the discussion of my paper at the colloquium for their enlightening suggestions and comments. The writing of this article was made possible by a research visit to Howard University in Washington DC in December 1999, funded by the Attorneys Fidelity Fund.
(Associate Professor)
Pages 1-33 | Published online: 02 Feb 2017

  • While this dilemma manifests itself in all spheres of legal interpretation, the relevant actors most readily acknowledge it in cases of constitutional interpretation. When I refer to constitutional adjudication — as I do consistently throughout this article — I am in no way implying that there is a fundamental difference between statutory interpretation and constitutional interpretation. Although a distinction is often made between the interpretation of the Bill of Rights, on the one hand, and the Constitution, on the other, this is a difference of degree rather than a difference in kind. See J Kentridge & D Spitz ‘Interpretation’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1999 revision) 11–15.
  • Constitution of the Republic of South Africa Act 108 of 1996 (the 1996 Constitution).
  • See, for example, J De Waal, I Currie & G Erasmus The Bill of Rights Handbook 3 ed (2000) 117 (‘[a]s with ordinary language, the meaning of a constitutional provision depends on the context in which it is used’). I do not dispute the observation made by Karl Klare that South African lawyers still have a relatively strong faith in the precision, determinacy and self-revealingness of words and texts. (See K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146, 168.) My point is that despite these deeply entrenched views, the new constitutional order has finally begun to force (at least some) South African lawyers to begin to rethink these assumptions. Although South African legal culture thus remains deeply conservative, the first stirrings of a new way of looking at legal texts can be observed.
  • See L Kalman The Strange Career of Legal Liberalism (1996) S. Kalman argues that: ‘Once the legal realists had questioned the existence of principled decision making, academic lawyers spent the rest of the twentieth century searching for criteria that would enable them to identify objectivity in judicial decisions.’ On current-day descriptions of legal realism, see generally WW Fisher III, M Horwitz & TA Reed (eds) American Legal Realism (1993); and J Singer ‘Legal Realism Now’ (1988) 76 California LR 465. Karl Klare, in his recent article in the pages of this journal, laments the lack of knowledge of and insight into legal realism among South African legal scholars and practitioners. Klare (note 3 above) 170n51.
  • The critical legal studies movement emphasised the indeterminacy of language and hence of legal decision-making and argued for an acknowledgement of this fact. See generally M Tushnet ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles' (1983) 96 Harvard LR 781; and D Kennedy A Critique of Adjudication: (Fin de Siècle) (1997).
  • See, for example, SM Feldman ‘The Politics of Postmodern Jurisprudence’ (1996) 95 Michigan Law Review 166; HL Dreyfus ‘Beyond Hermeneutics: Interpretation in Late Heidegger and Recent Foucault’ in MT Gibbons (ed) Interpreting Politics (1987) 203. For recent examples of this line of reasoning in the South African context, see J de Ville ‘Meaning and Statutory Interpretation’ (1999) 62 THRHR 373, 374–76 and De Ville ‘Legislative History and Constitutional Interpretation’ (1999) 62 TSAR 211. As De Ville (THRHR, 376) explains, according to this insight, a written text cannot have one pure or true meaning because meaning is a function of language itself and not of some or other mental process of the author of the text. In this view, the meaning of a text is never fixed or stable but changes with the context within which the text is situated. But while reference to the context assists us in determining the ‘meaning’ of the text, this context is boundless: it can never be determined fully in advance and can therefore never provide an absolute and final stability to the meaning of any text. Personally, I find myself largely in sympathy with these insights and this article is therefore an attempt to analyse one aspect of constitutional interpretation from the perspective of a somewhat sceptical adherent to the post-structuralist view of language. The increasing distrust among South African lawyers of the fixed meaning of language in constitutional interpretation, however, is not dependent on adherence to or sympathy with this view.
  • There still seems to exist a very strong view among most lawyers, judges and legal academics that because of the broad and general language employed in it, the constitutional text is unique in this regard and that ‘ordinary’ statutes usually do not present the same interpretative problems. Although I strongly disagree with this traditional view of how language works, the point I am making here is not dependent on a rejection of the traditional view.
  • See B Friedman ‘Book Review: The Turn to History: The Strange Career of Legal Liberalism’ (1997) 72 New York Univ LR 928, 932.
  • Klare (note 3 above) 157.
  • See, for example, the various writings by the Fagan brothers: A Fagan ‘In Defence of the Obvious: Ordinary Meaning and the Identification of Constitutional Rules' (1995) 11 SAJHR 545; E Fagan ‘The Longest Erratum Note in History: S v Mhlungu’ (1996) 12 SAJHR 79; and E Fagan ‘The Ordinary Meaning of Language: A Response to Professor Davis' (1997) 13 SAJHR 174.
  • See, for example, the remarks made by Sachs J in S v Makwanyane 1995 (3) SA 391 (CC) para 349: ‘Our function is to interpret the text of the Constitution as it stands. Accordingly, whatever our personal views on this fraught subject [of capital punishment] might be, our response must be a purely legal one.’
  • Note 3 above, 158, referring to the work of J Singer ‘The Reliance Interest in Property’ (1987) 40 Stanford LR 611, 624n39. For a recent discussion of this dilemma within the South African context, see H Botha ‘Democracy and Rights: Constitutional Interpretation in a Postrealist World’ (2000) 63 THRHR 561.
  • Kalman (note 4 above) 5.
  • For an example of such an attempt from a fairly traditional liberal perspective, see D Meyerson Rights Limited: Freedom of Expression, Religion and the South African Constitution (1997). Discussing the difficulties involved in interpreting the phrase ‘open and democratic society based on human dignity, equality and freedom’ in the limitation clause of the 1996 Constitution, Meyerson asks: ‘Is it possible to supply an interpretation of the phrase which avoids… problems of subjectivity, uncertainty, and apparent conflict between the fundamental values of the Constitution? I believe it is.’ (Ibid xxv.) Meyerson's optimism on this point is debatable. Judges and legal academics are generally uncomfortable with the idea that the law requires its main actors to take ethical responsibility for their decisions. This article is situated within the post-structural approach which is generally critical of those actors in the legal field who operate within a discourse of ‘objectivity’ and ‘neutrality’, in other words, in terms of universalising modes of thought. According to such critics, these lawyers, judges, academics and other actors advertently or inadvertently attempt to hide behind the discourse of objectivity and thus fail to take ethical responsibility for their actions and decisions. See generally D Cornell Transformations: Recollective Imagination and Sexual Difference (1993). Klare ((note 3 above) 147) argues that no one has yet devised or is likely to devise such a system of total constraint on the interpretation of the Constitution consistent with democratic values and hence that adjudication is inevitably ‘a site of law-making activity’.
  • See, for example, Meyerson (note 14 above) xxvi–xxvii.
  • The very real problem of objectivity in judicial decision-making was well demonstrated by the case of President of the RS A v South African Rugby Football Union 1999 (4) SA 147 (CC) in which the legal representatives of the Football Union requested that five of the judges of the Constitutional Court recuse themselves because of their alleged personal links to the President.
  • S v Zuma 1995 (2) SA 642 (CC) para 17.
  • Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution).
  • S v Zuma (note 17 above) para 33.
  • Note 11 above.
  • Klare (note 3 above) 173. See also Makwanyane (note 11 above) para 207, per Kriegler J (‘methods to be used are essentially legal, not moral or philosophical… it would be foolish to deny that the judicial process, especially in the field of constitutional adjudication, calls for value judgements in which extra-legal considerations may loom large. Nevertheless, the starting point, the framework and the outcome of the exercise must be legal’); para 349, per Sachs J (‘Our function is to interpret the test of the Constitution as it stands. Accordingly, whatever our personal views on this fraught subject might be, our response must be a purely legal one’); para 266, per Mahomed DP (‘[t]he difference between a political election made by a legislative organ and decisions reached by a judicial organ, such as the Constitutional Court, is crucial’).
  • Ibid para 321, per O'Regan J (language of fundamental rights is ‘broad and capable of different interpretations’); para 207, per Kriegler J (‘it would be foolish to deny that the judicial process, especially in the field of constitutional adjudication, calls for value judgements in which extra-legal considerations may loom large’); para 266, per Mahomed J (Constitution must be interpreted with reference, inter alia, to the text, context and the factual and historical considerations); para 382, per Sachs J (in seeking the kind of values which should inform the court's approach to interpretation the ‘rational and humane adjudicatory approach’ must be preferred).
  • See Klare (note 3 above) 172–87 for examples of this kind of reasoning by the judges of the Constitutional Court.
  • See generally Makwanyane (note 11 above) para 266, per Mahomed DP, for a summary of the Court's approach: ‘What the Constitutional Court is required to do in order to resolve an issue is to examine the relevant provisions of the Constitution, their text and their context; the interplay between the different provisions; legal precedent relevant to the resolution of the problem both in South Africa and abroad; the domestic common law and public international law impacting on its possible solution; factual and historical considerations bearing on the problem; the significance and meaning of the language used in the relevant provisions; the content and the sweep of the ethos expressed in the structure of the Constitution; the balance to be struck between different and sometimes potentially conflicting considerations reflected in its text; and by a judicious interpretation and assessment of all these factors to determine what the Constitution permits and what it prohibits.’
  • See Zuma (note 17 above)para 15 (reference to R v Big M Drug Mart Ltd (1985) 18 DLR (4th) at 321); President of the RSA V Hugo 1997 (4) SA 1 (CC) para 41 and Prinsloo V Van der Linde 1997 (3) SA 1012 (CC) para 32 (quoting from Egan v Canada (1995) 29 CRR (2d) 79, 104–5).
  • On the use of contextualism by the Canadian Supreme Court see SM Sugunasiri ‘Contextualism: The Supreme Court's New Standard of Judicial Analysis and Accountability’ (1999) 22 Dalhousie LJ 126. On the use of contextualism by the Constitutional Court, see for example Prinsloo (note 25 above) para 19 (the equality provision must be interpreted in relation to ‘the text and the context of the… Constitution’); S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) para 141 (freedom of religion clause must be interpreted with reference to the ‘text and the context of our own Constitution’).
  • On the use of history see, for example, Zuma (note 17 above) para 15, per Kentridge J (‘regard must be paid to the legal history, traditions and usages of the country concerned’); Makwanyane (note 11 above) para 39, per Chaskalson P (‘we arc required to construe the South African Constitution… with due regard to our legal system, our history and circumstances’); and para 264, per Mahomed DP (‘[i]t is against this historical background and ethos that the constitutionality of capital punishment must be determined’); paras 322–23, per O'Regan J (‘[t]he values urged upon the Court are not those that have informed our past…’ and in ‘interpreting the rights enshrined in chap 3, therefore, the Court is directed to the future’); Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) para 61, per Chaskalson (nature and extent of the power of Parliament to delegate its legislative powers ultimately depends ‘on the language of the Constitution, construed in the light of the country's own history’); Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC) para 46 per Sachs, quoting L Trakman Reasoning with the Charter (1991) 201 (‘Rights are not self-explanatory. They are principled constructions informed by social history’); Brink v Kitshoff 1996 (4) SA 197 (CC) para 40 per O'Regan (the equality provision is the product of our own particular history and ‘its interpretation must be based on the specific language of [the provision], as well as our own constitutional context’ and our ‘history is of particular relevance to the concept of equality’); Prinsloo (note 25 above) para 31, per Ackermann, O'Regan and Sachs JJ (‘given the history of this country we are of the view that discrimination has acquired a particular pejorative meaning’); Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 126, per Kriegler J (viewed in its textual and historical context the rights and freedoms in the Constitution have a poignancy and depth); Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development; Executive Council, KwaZulu-Natal v President of the Republic of South Africa 2000 (1) SA 661 (CC) 1377 para 44, per Ngcobo J (‘A provision in a Constitution must be construed purposively and in the light of the constitutional context in which it occurs. History could not be ignored in that process’); Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35, per O'Regan J (‘The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied’).
  • For a short review of contextual interpretation by the Constitutional Court, see De Waal et al (note 3 above) 126.
  • This concept of the grand narrative borrows from the work of Jean Francois Lyotard. Lyotard has argued that meaning in modern society (as opposed to post-modern society) is predicated on so-called meta-narratives. Such narratives operate as great structuring (metaphysical) stories that are supposed to give meaning and make us understand all other events and interpretations. Post-structuralists such as Lyotard are generally sceptical about such metanarratives and point out that the loss of this legitimating function creates a crisis in metaphysical philosophy. See, generally, JF Lyotard The Post-Modem Condition (1984) xxiv, 34–37. See also K Jenkins Re-thinking History (1991) 60. What I refer to as a grand narrative is an attempt to apply Lyotard's work on a micro level.
  • E Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31, 31–32. Under the heading, National Unity and Reconciliation, the interim Constitution declares: ‘The Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.’
  • Makwanyane (note 11 above) para 156, per Ackermann J (‘We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional State where State action must be… justified rationally’); para 220, per Langa J (the Constitution signalled a ‘dramatic change in the system of governance’); paras 262, per Mahomed J (the Constitution represents a ‘decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive’ and must be interpreted against this historical context); para 302, per Mokgoro J (the historical context within which the Constitution was adopted helps to explain its meaning); para 322, per O'Regan J (the values of the Constitution are ‘not those that have informed our past’). 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) para 10 (quoting the postamble to the interim Constitution); Azanian Peoples Organisation (Azapo) v President of the Republic of South Africa 1996 (4) SA 671 (CC) paras 2–3, per Mahomed DP (Constitution is committed to a more just, democratic order); Shabalala v Attorney-General of the Transvaal 1995 (12) BCLR 1593 (CC) paras 25–26; Lawrence (note 26 above) para 147; Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 94, per Kriegler J 897; Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) para 8, per Chaskalson p (a commitment to ‘transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order’).
  • The terminology of ‘historical self-consciousness’ is borrowed from Klare (note 3 above) 155.
  • Preamble to the 1996 Constitution paras 2–3.
  • See notes 26 and 30 above.
  • Note 11 above, para 323.
  • See notes 26 and 30 above.
  • See for example De Waal et al (note 3 above) 123–24; Kentridge & Spitz (note 1 above) para 11–8, 11–25.
  • (1994) (1) BCLR 75 (E).
  • Ibid 81 (per Froneman J). The mischief rule formed part of South Africa's traditional rules of statutory interpretation. The aim of the rule was to contextualise the statutory provision to be interpreted with reference to its precautionary nature. This means that the situation prior to and during the passing of the Act could be considered to assist in the interpretation of a specific provision of that Act. See L du Plessis The Interpretation of Statutes (1986) 33; and GE Devenish Interpretation of Statutes (1992) 130. Froneman J's resort to this rule in the context of constitutional interpretation thus makes creative use of an existing rule of statutory interpretation to ensure that a more contextual approach to the interpretation of the Constitution is followed. This approach foreshadows that later adopted by the Constitutional Court and shows remarkable insight at a very early stage of constitutional interpretation in South Africa.
  • Note 17 above, para 17.
  • In this approach one finds echoes of traditional approaches to legal interpretation that purport to identify the ‘intention of the legislature’ in determining the meaning of the relevant text. Since if one has identified the ‘mischief that the Constitution was designed to remedy, one may more easily determine the intention of the writers of the Constitution. I suspect that the Constitutional Court's ‘contextual’ approach to interpretation is often little more than a revamped version of the traditional methods of legal interpretation. It is, however, beyond the scope of this article to explore this fascinating aspect any further.
  • First Certification Case (note 30 above) para 5, quoting from the postamble to the interim Constitution.
  • Makwanyane (note 11 above) para 262, per Mahomed DP. See also Du Plessis (note 26 above) para 125, where Kriegler J in a dissenting judgement argues that South Africa's past is not merely one of repressive use of state power: ‘It is one of persistent, institutionalised subjugation and exploitation of a voiceless and largely defenceless majority by a determined and privileged minority. The untold suffering and injustice of which the postscript speaks do not refer only to the previous years, nor only to Bantu education, group areas, security and the similar legislative tools used by the previous government.’
  • First Certification Case (note 30 above) paras 8 and 9.
  • Ibid para 7.
  • Ibid para 8.
  • Ibid para 9.
  • Azapo (note 30 above) para 1, per Mahomed DP.
  • Makwanyane (note 11 above) para 322, per O'Regan J.
  • Azapo (note 30 above) para 2.
  • First Certification Case (note 30 above) para 10.
  • Ibid para 11. See also Azapo (note 30 above) para 2 and Mureinik (note 29 above) 32. Mureinik, taking his cue from the postamble to the interim Constitution, argued that the said Constitution was a bridge from a culture of authority to a new culture of justification. In Mureinik's view, it was the culture of authority that made it possible for the gardeners of apartheid to cultivate ‘the forest of apartheid statutes’ (ibid).
  • First Certification Case (note 30 above) para 13.
  • Azapo (note 30 above) para 2.
  • Hugo (note 25 above) para 41.
  • Dawood (note 26 above) para 35. See also Makwanyane (note 11 above), para 329, per O'Regan J: ‘Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.’
  • Ferreira v Levin NO: Vryenhoek v Powell NO 1996 (2) SA 621 (CC) para 51, per Ackermann J.
  • Shabalala (note 30 above) para 25–26.
  • Lawrence (note 26 above) para 147.
  • Azapo (note 30 above) para 2.
  • Soobramoney (note 30 above) paras 8–9.
  • Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 6, 22.
  • This elite also includes many of the judges now sitting on the Constitutional Court. Arthur Chaskalson and Albie Sachs, for example, assisted the African National Congress during constitutional negotiations.
  • N Worden The Making of Modern South Africa 3 ed (2000) 3. See also J Pampallis Foundations of the New South Africa (1991) and H Jaffe European Colonial Despotism: A History of Oppression and Resistance in South Africa (1994).
  • E Foner ‘“We must forget the past”: History in the New South Africa’ (1995) 32 South African Historical J 163, 166.
  • Jaffe (note 63 above) 11.
  • P van der Spuy ‘Silencing Race and Gender’ (1997) 36 South African Historical J 256, 262; H Bradford ‘Women, Gender and Colonialism: Rethinking the History of the British Cape Colony and its Frontier Zones, c 1806–70’ (1996) 37 J of African History 351.
  • Foner (note 64 above) 167–68.
  • Jaffe (note 63 above) 227–28.
  • See Worden (note 63 above) 2–5. At first this revolution encompassed a revision by liberal historians of the traditional historical narrative by including previously silenced voices and perspectives into the traditional liberal narrative. Later, neo-Marxist historians questioned the liberal grand narrative itself, choosing to focus on the role of colonial capitalism in the formation of oppression in South Africa. More recently, feminist and post-structuralist influences have led to a questioning of the deployment of a grand narrative of any kind, choosing instead to focus on the way in which history is constructed in South Africa.
  • R Greenstein ‘History, Historiography and the Production of Knowledge’ (1995) 32 South African Historical J 217–229. Greenstein argues that the post-liberal historiography in South Africa replaced colonially inspired grand narratives with grand narratives of class, nation and political emancipation.
  • Ibid 228. Greenstein notes that very little explicit discussion has taken place amongst mainstream South African historians around the potential influence of post-structuralist philosophy on historiography. For one of the few debates on this issue in South Africa, see M Vaughan ‘Colonial Discourse Theory and African History, or Has Post-Modernism Passed Us By?’ (1994) 20 Social Dynamics 1; and D Bunn ‘The Insistence on Theory: Three Questions for Megan Vaughan’ (1994) 20 Social Dynamics 24.
  • P Novick That Noble Dream: ‘The Objectivity Question’ and the American Historical Profession (1988) 1–17. On the problems of finding truth in history and of doing objective history see also J Appleby et al Telling the Truth about History (1994) and K Windschuttle The Killing of History (1996).
  • Jenkins (note 28 above) 6.
  • M Foucault ‘Nietzsche, Genealogy, History’ in P Rabinow (ed) The Foucault Reader (1984) 76.
  • M Foucault Discipline and Punish: The Birth of the Prison (1977) (trans Alan Sheridan, 1978) 27–28.
  • Jenkins (note 28 above) 25–26.
  • By power I do not (merely) mean political power possessed by the government or powerful stakeholders. I use power here in the Foucauldian sense, to refer to the concept, developed by Foucault between 1975 and 1977, of what he called an ‘analytics of power’. These ideas were contained in three of Foucault's books: Discipline and Punish (note 75 above). The History of Sexuality (1978) (trans R Hurley, 1979); and Power/Knowledge (1980) (trans C Gordon, L Marshall, J Mepham & K Soper, 1980). In Foucault's view, power is not something to be held by powerful people and exercised against the weak. Power is something that circulates and produces reality as we know it. In this sense, power is the sum total of all factors that produce the reality we live in.
  • Of course this does not mean that racial prejudice was absent in such societies and that such prejudice went unremarked on. Shakespeare's Othello is an excellent example of the way in which racial prejudices were indeed reflected in culture. But concepts such as ‘racism’ were not part of the public discourse indeed of any discourse in Shakespeare's time and could not be deployed in the fight against such prejudice. I would contend that Shakespeare's genius is once again displayed in the fact that, despite the absence of such a discourse, he managed to elicit some sympathy for Othello in his play.
  • And he would, invariably, also have been a white man. given the power relations in the particular society.
  • His version would have differed markedly from, say. the version of a local storyteller, but the latter version would not have enjoyed the same status as the former and would therefore have been invisible (or would have ‘disappeared’) in the dominant discourse.
  • On law and the construction of race, see generally CA Ford ‘Administering Identity: The Determination of Race in Race-Conscious Law’ (1994) 84 California LR 1231.
  • As Jenkins ((note 28 above) 18), puts it: “Wc should not ask, what is history, but who is history for?’
  • AC Danto Narration and Knowledge (1985) 92–93, 287, 297.
  • Friedman (note 8 above) 957.
  • Jenkins (note 28 above) 17–18.
  • Ibid.
  • Jenkins (note 28 above) 70.
  • Ibid 8.
  • See M Tushnet ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’ (1983) 96 Harvard LR 781, 784–85, 802.
  • This point is a difficult one, because it might seem to suggest that the dominant historical discourse is more flexible than it really is. The point I am making is that history invariably changes as society changes. This does not mean that a dominant version of history — especially when it relates to the kind of grand narrative I have referred to — cannot become extremely powerful and can drown out other voices for a very long time. Inevitably, though, those voices (or other voices that may follow) will be heard.
  • Note 26 above.
  • Section 90(1) read with ss 159(a) and 163(1)(a) of the Liquor Act 27 of 1989.
  • Three other judges, Langa DP, Ackermann and Kriegler JJ, signed Chaskalson P's opinion, which defined s 14 restrictively and found no infringement. O'Regan J's opinion provided a more expansive interpretation of s 14 and found that an infringement was present. This opinion was signed by two other judges, Goldstone and Madala JJ. Sachs J, supported by Mokgoro J, adopted an even more expansive interpretation of s 14 but found that, although the provisions of the Act did infringe on the s 14 guarantee, this was justifiable in terms of the limitation clause.
  • Lawrence (note 26 above) para 92, endorsing a definition of the Canadian Supreme Court in R v Big M Drug Mart Ltd (1985) 13 CRR 64, 97.
  • Ibid.
  • See O'Regan J (ibid para 123) and more specifically Sachs J (ibid paras 149–50). The closest Chaskalson P came to admitting that this history existed, was when he referred to the history of the impugned legislation, admitting that ‘closed days [such as Christmas] was included into the Liquor Act for a religious purpose’ (ibid para 86).
  • Ibid paras 95 and 96. Chaskalson P did not, however, remark on the possible views of South Africans about the secular character of Christmas and Good Friday.
  • Ibid paras 121–22.
  • Ibid para 123. See also the judgment of Sachs J, paras 148–52, where he provides an account of the ways in which Christian principles were endorsed by legislation and its practices often imposed on all South Africans regardless of their beliefs.
  • Ibid paras 149–52.
  • Ibid para 152.
  • Ibid.
  • 1998 (3) SA 785 (CC).
  • Section 64 of the Insolvency Act.
  • The relevant part of the section reads as follows:
  • (1) Everyone has the right to freedom and security of the person, which includes the right
  • not to be deprived of freedom arbitrarily or without just cause;
  • not to be detained without trial;
  • to be free from all forms of violence from either public or private sources;
  • not to be tortured in any way; and
  • not to be treated or punished in a cruel, inhuman or degrading way.
  • By Ackermann, Didcott, Mokgoro, O'Regan and Sachs JJ. It is perhaps not irrelevant that two earlier decisions of the Court based on s 11 of the 1993 Constitution — the predecessor to s 12 — provoked similar discord. In Ferreira v Levin NO (note 56 above) five judgments were delivered, with Ackermann J's extensive philosophical musings taking up 92 pages in the law report. In Bernstein v Von Wielligh Bester NO 1996 (2) SA 751 (CC), three judgments were delivered. On Ackermann J's judgment in Ferreira, see generally I Currie ‘Judicial Avoidance’ (1999) 15 SAJHR 138, 150–55.
  • De Lange (note 103 above) para 43, where Ackermann J stated: ‘This question, though simple, raises profound issues concerning the nature of the constitutional State and the separation of powers
  • See the judgment of Ackermann J, in which Chaskalson P, Langa DP and Madala J concurred. Sachs J delivered a separate concurring judgment.
  • See the separate judgments of O'Regan and Mokgoro JJ.
  • Kriegler J concurred in the judgment of Didcott J.
  • De Lange (note 103 above) paras 26, 42; para 60, per Ackermann J; para 173, per Sachs J.
  • Ibid paras 115–16.
  • Ibid para 43.
  • Ibid para 47.
  • Ibid para 58.
  • Ibid para 43, per Ackermann J.
  • 1998 (2) SA 363 (CC).
  • Section 9 is similar, but not identical to, s 8 of the interim Constitution. The Constitutional Court, however, has held (in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 15) that ‘the equality jurisprudence and analysis developed by this Court in relation to s 8 of the interim Constitution is applicable equally to s 9 of the 1996 Constitution, notwithstanding certain differences in the wording of these provisions.’
  • Section 9(1).
  • Prinsloo (note 25 above) para 17. See also the Court's reference to P Hogg Constitutional Law of Canada 3 ed (1992) para 52.6(b).
  • Prinsloo (note 25 above) para 18.
  • Brink (note 26 above) para 39.
  • Ibid para 40. See also Prinsloo (note 25 above) para 20.
  • In Prinsloo (note 25 above) para 31, the Court said the following: ‘Given the history of this country we are of the view that “discrimination” has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. We are emerging from a period of our history during which the humanity of the majority of the inhabitants of this country was denied. They were treated as not having inherent worth; as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth…. Although one thinks in the first instance of discrimination on grounds of race and ethnic origin one should never lose sight in any historical evaluation of other forms of discrimination such as that which has taken place on the grounds of sex and gender.’
  • Walker (note 117 above) para 17 (‘the disparities and imbalances inherent in our society which are the result of policies of the past’); para 46, per Langa DP (‘Differentiation made on the basis of race… was a source of grave assaults on the dignity of black people in particular’); para 107, per Sachs J (‘In the light of our history of institutionalised racism’).
  • Ibid para 48.
  • Ibid paras 76–77.
  • Ibid para 123.
  • Ibid para 123.
  • Ibid para 103.
  • Ibid para 113.
  • For example, the way in which judges view the role of capitalism in apartheid South Africa and in the new democratic South Africa has the potential to have a profound influence on the interpretation of the Bill of Rights in the 1996 Constitution. As South Africa changes, progressive judges might want to rethink the benign role attributed to capitalism under apartheid, but will be unable to do so if the grand narrative — silent on this issue — becomes so entrenched and accepted that no challenge to it is possible.
  • Klare (note 3 above) 155.
  • See Jenkins (note 28 above) 69.
  • M Foucault ‘Critical Theory/Intellectual History’ in LD Kritzman (ed) Politics, Philosophy, Culture. Interviews and Other Writings, 1977–1984 (1990) (trans A Sheridan, 1988) 39.
  • To some extent the Constitutional Court embarked on such an endeavour in National Coalition (note 118 above) when it focused on the history of gay men, lesbians and bisexuals and (re(interpreted South Africa's history to include in it the often silenced and hidden stories of marginalisation and oppression suffered by such groups. Although this silence is perpetuated in the Court's version of the master narrative — oppression in terms of race and gender seems to be the focus of this master narrative — in this case the Court reflected on history more broadly and produced a version that allowed for the rehabilitation of such groups.
  • Jenkins (note 28 above) 18.
  • Ibid 19.
  • Ibid.

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