2.4 Advancing constitutional values through transformative
2.4.1 A Post-liberal interpretation of the Constitution
The transformative mandate of the Constitution has been deemed to embody "an empowered model of democracy", that has to be interpreted as a "post-liberal document".225 The Constitution is a post-liberal document because, unlike a classical liberal document, it "embraces a vision of collective self-determination parallel to (not in place of)" its firm "vision of individual self-determination".226 Moreover, the Constitution encapsulates certain political commitments which call for "communitarian" and "caring"
223 Murcott "Introducing Transformative Environmental Constitutionalism in South Africa" 287.
224 Soobramooney 8; Davis and Klare 2010 SAJHR 404.
225 Klare 1998 SAJHR 151.
226 Klare 1998 SAJHR 153.
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interpretations.227 Simply put, the strict division between politics and law that informs a classical liberal philosophy would not be maintained in the post-liberal interpretation of the Constitution. On this note, Sibanda228 notes that there are two approaches to constitutionalism in South Africa: the classical liberal approach to constitutionalism and the transformative approach to constitutionalism (or post-liberal approach to constitutionalism).
For better comprehension of these approaches, it is necessary to first determine what constitutionalism is in the context of this thesis. Constitutionalism refers to a system of governance that is founded on the basis of a constitutional document whose main functions are to structure, distribute, delineate and limit the power of the state within a distinct geo-political community.229 Attendant to such an understanding of constitutionalism is the notion that constitutional values are not predetermined, but are rather a result of the social, economic, political and cultural history prevailing during the time of the adoption of a constitution.230 This means that constitutional values in South Africa are not fixed or arranged in advance, but are instead a product of the country's prevailing economic, social, political and cultural history that prevailed at the time of the adoption of the Constitution. As already mentioned, constitutionalism in South Africa has been characterised based on the classical liberal philosophy and the post-liberal philosophy.
Notable is that the classical liberal philosophy or approach to constitutionalism considers post-apartheid South Africa as gradually transforming from autocratic rule to a constant liberal democracy.231 In providing credence to the classical liberal philosophy, its proponents refer to a peaceful and successful transition; a universal respect for the rule
227 Klare 1998 SAJHR 152; Roux 2009 Stell LR 280-281.
228 Sibanda 2011 Stell LR 483, 500.
229 Fombad 2007 The American Journal of Comparative Law 6-10; Devenish A Commentary on the South African Constitution 4; Sibanda 2011 Stell LR 484.
230 Devenish A Commentary on the South African Constitution 4.
231 Sibanda 2011 Stell LR 484; Michelman 2011 Stell LR 707, 708.
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of law; an arguably free media; a stable democratic government; a multiparty system of representative democracy; regular, free and fair elections; and an independent judiciary that enjoys powers of substantive judicial review.232 In sum, proponents of the classical liberal philosophy emphasise the benefits of political transformation and placing limits on the power of the state post 1994.
However, the transformative approach to constitutionalism, (or what Klare refers to as post-liberal constitutionalism), while acknowledging the significance political transformation has had in ushering the country in a democratic era, also leaves its own footprint on constitutionalism. That is to say, post-liberal constitutionalism points out that regardless of the Constitution’s preambular promise to "improve the lives of all citizens"
and the presence of socio-economic rights in the Bill of Rights,233 living conditions in the country from an socio-economic perspective remain deeply unchanged for most black citizens who continue to live in the reality of the multiple legacies of apartheid.234 A major concern for post-liberalists is that, regardless of the political transformation (ascribed to the classical liberal philosophy above), South Africa continues to experience severe structural poverty; an increasing educational crisis; increasing income inequality; and intense increases in rural-urban migration.235 In brief, post-liberalists consider transformation as necessitating both socio-economic and political change.
For the purpose of this thesis, a post-liberal reading of the Constitution will be used as the underlying philosophy for constitutional values in adjudication. In other words, this thesis will use a post-liberal interpretation of the Constitution because it is a central aspect of the argument in favour of transformative adjudication. As Klare236 posits, a post-liberal interpretation of the Constitution is at the crux of transformative constitutionalism. The
232 See Farinacci-Fernós 2018 Tulsa L Rev 2-6; Sibanda 2011 Stell LR 484.
233 See chapter 2 of the Constitution.
234 National Planning Commission 2010 National Planning Commission Diagnostic Overview 7.
235 Terreblanche A History of Inequality 7; Sibanda 2011 Stell LR 485; Sibanda 2020 Law democr Dev 389, 403; Bhorat, Van der Westhuizen and Jacobs 2009 Income and Non-Income Inequality in Post- Apartheid South Africa: What Are the Drivers and Possible Policy Interventions? 5-15;
236 Klare 1998 SAJHR 151-157, 163-164. See also Geduld Ubuntu as a Constitutional Value 64.
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post-liberal philosophy is credited to the "school of critical legal studies".237 Classified among the central claims of the critical legal studies movement is the disapproval of the classical liberal philosophy.238 In this respect, the critical legal studies movement disapproves the classical liberal philosophy on four grounds. These grounds include the contradiction of the law,239 indeterminacy of law,240 marginality and formality.241 Conversely, the proponents of the classical liberal philosophy criticise the school of critical legal studies on the grounds that it is void of a constitutive theory.242 In response, Geduld243 avers that the lack of a constitutive theory eposes "the fallibility of law". In other words, although critical legal studies has no constitutive theory, it nonetheless transcends the conventional, formalistic and liberal view of law and adjudication, hence, the expression 'post-liberal'.
It should be noted further that one of the criticisms propounded against Klare's post- liberal interpretation of the Constitution is that he does not explain what a post-liberal
237 Altman "Critical Legal Studies and Liberalism" 110-111; Hunt 1986 Oxford Journal of Legal Studies 5.
238 Hunt 1986 Oxford Journal of Legal Studies 5, 8; Locke Second Treatise of Government and a Letter Concerning Toleration 15.
239 Russell 1986 Ottawa L Rev 8 states that inherent contradictions "arise from the fact that legal rules rely on competing types of norms with the implication that parties can argue from different sides".
These inherent contradictions also lead to the aforementioned issues of unpredictability and indeterminacy in law. Moreover, "contradictory norms that are often referred to within the school of critical legal studies include that of individualism vs altruism, or differently stated, the self and the community". See also Altman "Critical Legal Studies and Liberalism" 113; Hunt 1986 Oxford Journal of Legal Studies 21.
240 The law is perceived to be indeterminate because it cannot provide clear solutions to every possible situation: "[i]n other words, one might be able to state what a certain provision states, but one cannot predict the outcome of every case as situations vary". See Russell 1986 Ottawa L Rev 8; Geduld Ubuntu as a Constitutional Value 65.
241 Formalism can be described as the notion that "legal rules can be applied without recourse to extra- juridical factors" such as values, social goals, economic or political factors. Thus, "law and adjudication is objective and neutral". See Klare 1998 SAJHR 151-157, 162-163; Russell 1986 Ottawa L Rev 8;
Unger The Critical Legal Studies Movement 8.
242 Hunt 1986 Oxford Journal of Legal Studies 8.
243 Geduld Ubuntu as a Constitutional Value 66.
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interpretation means.244 Roux,245 for instance, opposes Klare's use of the term ''post- liberal'' by asserting that:
I, for my part, would resist putting a label on the political ideology manifest in the Constitution, since I think this would inevitably make it less than the sum of its parts. I would also, as I have said, certainly avoid the label 'post-liberal' because of its implications that liberalism has a conceptual termination point. If pressed, I would say that the Constitution is a liberal Constitution- of a particular type- certainly not a classical liberal Constitution, but one that reflects the more statist and communitarian tradition within liberalism, and connects it with the indigenous African philosophy of Ubuntu…
[Therefore in giving effect to the objects of the Constitution, the Constitutional Court]
should redouble its effects to develop a substantive ''moral reading'' of the Constitution…Secondly, the court should return to the foundational distinction between the elaboration of the content of rights and the permissible grounds for their limitation, and develop a more coherent theorisation of the values underlying an ''open and democratic society based on human dignity, equality and freedom". It is that theorisation, after all, that stands between South Africans and government by political faction.
Considering the statement above, as well as the fact that Roux concurs with Klare on 'political commitments' being ascribed to the Constitution, it is evident that Roux's disapproval of the term 'post-liberal' is only semantic. That is, it implies, according to Roux's standards, that there is a start and an end to liberalism.246 Thus, both authors arguably concede that the Constitution has very distinct features that separate it from a traditional liberal Constitution, thereby requiring a transformative approach.247
Notwithstanding, Roux's disapproval of the use of the term 'post-liberal', a number South African authors prefer a post-liberal approach to interpretation and adjudication of the Constitution and other general statutes.248 Du Plessis,249 for instance, maintains that he disapproves of a theory of interpretation that proposes a formula or rigid rules to be
244 Roux 2009 Stell LR 279, 280.
245 Roux 2009 Stell LR 280, 284.
246 Roux 2009 Stell LR 280-284.
247 Distinct features such as the Constitution’s call to promote values during interpretation. See sections 1, 7, 39, 41 and 195 of the Constitution.
248 Mureinik 1994 SAJHR 31-32; Michelman et al 1995 SAJHR 485; Du Plessis 2005 SALJ 611; Du Plessis 2015 PER/PELJ 1340; Du Plessis 1998 Acta jurid 18.
249 Du Plessis 2005 SALJ 611; Du Plessis 2015 PER/PELJ 1340; Du Plessis 1998 Acta jurid 18.
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complied with in any situation. Instead, Du Plessis250 proposes five broadly defined interpretive tools of statutory interpretation. These techniques include systematic interpretation, grammatical interpretation, historic interpretation, comparative interpretation and teleological interpretation.251
The first technique is systematic interpretation, which is best described as contextualisation, i.e. the text found within the context of the wording of the whole statute.252 Second, grammatical interpretation permits the adjudicator to have recourse to the everyday or ''natural language'' use of the text.253 The next technique is what Du Plessis refers to as 'historical interpretation', a technique that permits judges to delve into the genesis of the text.254 Another technique identified by Du Plessis is comparative
250 Du Plessis 1998 Acta jurid 18.
251 Du Plessis 2005 SALJ 600-601.
252 Du Plessis 1998 Acta jurid 14; Du Plessis 1999 Sask L Rev 31 avers that systematic interpretation leads judges to look into the schedule, long titles and preamble of legislation for meaning. He further highlights that the systematic and purposive interpretation techniques overlap in so much as "a purposeful reading needs to be a holistic reading". The link between the systematic and purposive methods of interpretation is apparent from how the long title and preamble describe the purpose of a statute as well as the context within which to apply the statute. Du Plessis further makes a distinction between intra-textual systematic interpretation and extra-textual systematic interpretation. On one hand, intra-textual systematic interpretation could overlap with grammatical interpretation because the systematic interpretation, just like the grammatical interpretation, requires one to refer to the definition, long title, preamble, and schedule of statutes so as to give meaning to a specific text. On the other hand, extra-textual systematic interpretation refers to ''meaning generative signifiers'' in the textual environment. These ''meaning generative signifiers'' include, inter alia, the Constitution, international law, the Interpretation Act 33 of 1957 (herein the Interpretation Act), the legally recognised interests of society and the political and constitutional order. Extra-textual systematic interpretation further supports the view that constitutional values play a pivotal role not only in constitutional adjudication, but in statutory interpretation as a ''meaning generative term''. This way, adjudicators rely on ''constitutional values as something outside the text to aid with interpretation''.
See also Du Plessis 2005 SALJ 603-606.
253 The natural language of a text can be juxtaposed with "formal language", which refers to subject- specific or specialist terms. Thus, the language, or even natural language of a text, cannot be unambiguous and clear. Although, the grammatical interpretation can be the starting point in interpreting statutes it cannot, however, be the sole basis to be relied upon by an adjudicator because the meaning of values is never devoid of context or entirely straightforward. See Du Plessis 2005 SALJ 601-602.
254 Du Plessis 2005 SALJ 609-610 posits that the main focus is not on the historical facts of the text, but the spirit of history. Any reference to the predecessors and successors of statutes are all forms of historical interpretation that can help add meaning to a provision. See also Du Plessis 1998 Acta jurid 15; Du Plessis 1999 Sask L Rev 31.
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interpretation.255 Comparative interpretation allows adjudicators to have recourse to international law and foreign law during statutory interpretation.256 However, Du Plessis quickly highlights that the comparative method of interpretation is likely to be used less frequently in the future as South Africa's constitutional dispensation progresses to become more established.257
The last technique, and most relevant to this thesis is the teleological technique.258 Du Plessis259 illustrates teleological interpretation as purposive interpretation that recognises the values and objects of the legal system.260 He includes values and objects in his analysis because purposive interpretation was also employed during the pre-democratic era.261 Thus, referring to Botha,262 Du Plessis263 argues that the teleological approach really is a ''a value-activating interpretation'', a preferred approach unlike the simple purposive approach to constitutional and statutory interpretation. According to Du Plessis,264 sections 1, 7, 39, 41 and 195 of the Constitution are the most authoritative sources of values. However, 'other' values can also be inferred when one considers the rest of the Constitution's text.265 Du Plessis266 concludes his averment on the teleological approach by arguing that the teleological and purposive interpretation should be used side by side the systematic interpretation as it is impossible to leave out subjective prejudices during
255 Du Plessis 2005 SALJ 610-611.
256 Du Plessis 2005 SALJ 610-611.
257 Du Plessis 2005 SALJ 610-611.
258 Du Plessis 1998 Acta jurid 15; Du Plessis 1999 Sask L Rev 31; Du Plessis 2005 SALJ 607-609.
259 Du Plessis 1998 Acta jurid 15; Du Plessis 1999 Sask L Rev 31; Du Plessis 2005 SALJ 607-609.
260 Du Plessis 1998 Acta jurid 15 however cautions adjudicators against a strict reliance on the teleological approach because it is impossible for one to know the purpose of a text before interpretation. The author also suggests that in employing the teleological approach, it is prudent for adjudicators to consider the historical method of interpretation. He proceeds to aver that any use of the teleological approach without recourse to history of the provision is empty. Any reference to the predecessors and successors of statutes are all forms of historical interpretation that can help add meaning to a provision. See also Du Plessis 2005 SALJ 609-610; Du Plessis 1999 Sask L Rev 31.
261 Du Plessis 2005 SALJ 607-608.
262 Botha Waarde-Aktiverende Grondwetuitleg: Vergestalting Van Die Materiele Regstaat 265-280.
263 Du Plessis 2005 SALJ 607-608.
264 Du Plessis 2005 SALJ 608.
265 Du Plessis 2005 SALJ 608.
266 Du Plessis 2005 SALJ 608.
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adjudication. In addition, Du Plessis advocates for transformative constitutionalism as a method of constitutional interpretation.267 Du Plessis268 perceives transformative constitutionalism as having:
Every potential to impact constitutional (and, more generally, legal) interpretation profoundly and guide, as a leitmotiv, both the interpretive mind-set (also read:
theoretical position(s)) and the interpretive style (also read: methodology) of especially judicial interpreters of the Constitution, in an irrevocably new direction. South Africa's Constitution is furthermore thoroughly transformative in many respects, and in section 7(2) it invites (and arguably compels) the optimum realisation of the rights entrenched in the Bill of Rights, requiring the state not only to respect and protect, but (also) to promote and fulfil those rights.
The Constitution's transformative nature has far-reaching consequences for its interpretation and therefore necessitates a resolute makeover of adjudicative reasoning in the interpretation and application of enacted law.269 In this regard, Klare270 avers that:
The Constitution invites a new imagination and self-reflection about legal method, analysis and reasoning consistent with its transformative goals. By implication, new conceptions of judicial role and responsibility are contemplated. Judicial mind-set and methodology are part of the law, and therefore they must be examined and revised so as to promote equality, a culture of democracy and transparent governance.
Klare's call for a makeover of adjudicative reasoning is in stark contrast to a classical liberal philosophy which compels judges to discard their personal and political viewpoints when undertaking adjudicative process, with the result that they interpret and apply the law in a mechanical manner.271 Klare272 vehemently argues, that it is improbable that the draftsmen of the Constitution intended for the ancient formal legal techniques to be
267 Du Plessis 2015 PER/PELJ 1341. Du Plessis further writes on the four leitmotivs to be used in constitutional interpretation. Worth noting is that, a leitmotiv is ''a recurring keynote or defining ideas, motifs or topoi guiding instances of constitutional interpretation''. Du Plessis's leitmotivs include monumental, memorial, transitional and transformative constitutionalism. Relevant to this thesis is the leitmotiv, transformative constitutionalism.
268 Du Plessis 2015 PER/PELJ 1351.
269 Du Plessis 2015 PER/PELJ 1352.
270 Klare 1998 SAJHRRights 156.
271 Klare 1998 SAJHR 156. "Transformative constitutionalism thus inspires preference for non-formalist, non-legalist and non-literalist approaches to constitutional interpretation and, very importantly, it explodes the myth that an a- or non-political legal interpretation - and constitutional interpretation, in particular - is achievable". See Du Plessis 2015 PER/PELJ 1352; Langa 2006 Stell LR 354-359.
272 Klare 1998 SAJHR 156. See Du Plessis 2015 PER/PELJ 1353-1353.
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applied when interpreting the Constitution and its transformative values and goals.
Concurring with Klare, Zitzke273 notes that such formalism would be flawed as it implies that adjudication and legal interpretation is simple arithmetic. Furthermore, such interpretation is problematic as constitutional values do not come with fixed or ready- made meanings.274 Instead, constitutional values have to be interpreted.275 The result being that the interpreter, in this case the courts, often have to rely on constitutional values that can be gleaned outside the law and text.276 By referring to constitutional values in the adjudication process, judges fulfil their transformative mandate, and therefore engage in what is known as transformative adjudication.