South Africa's negotiated senlement included a written constitution and the promulgation of a justiciable Bill of Rights, a bridgel24 accross which, it is hoped, the
the fact that culturally relative values and culturally relative assumptions - the values that undergird imperialism for instance - have combined to produce 'literal' meaning.
I2l The seeming neutrality of the 'common meaning' approach provides its adherents adherents with a defense against the charge of ideological bias, something that everyone has, but few are prepared to admit to. As Eagleton points out "nobody would claim that their own thinking was ideological just as nobody would habitually refer to themselves as Fatso ... Ideology like halitosis is in this sense what the other person has" (Eagleton 1991: 3). Eduard Fagan, in the course of defending the 'ordinary meaning' approach, avers:
I had thought that my note was concerned merely with the importance of respecting the ordinary meaning of language, even if (particularly if?) that language is contained in the Constitution. I was therefore a little surprised to discover that I was in the process propounding an ideology which would be welcomed by 'conservative practitioners' and used by 'those with more mysterious motives' (at 51 I). (Fagan 1997: 173)
I would respond to Fagan that the 'common meaning' approach to interpretation is ideological whether or not he intends it to be so: ideology is inadvertent as much as it is considered.
transition from authoritarianism to democracy will be facilitated.12S As the then Deputy President, Justice Mahomed wrote in Makwanyane, referring to the interim text:
The South African 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 a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution.126
Edouard Fagan describes the impact of the introduction of the Constitution In
similarly enthusiastic terms:
The Constitution represents and embodies within it the fundamental transformation of South African society. It replaces the policy of apartheid and introduces for the first timt:: in the history of the country, a democratic order based on a universal franchise. (Fagan 1998: 261)
The possibility of justice within South Africa's legal system lies mainly. for better or for worse, with judges.t27 One consequence of the choice of constitutional supremacy over parliamentary sovereigntyt28 has been an increase in the power of the judges.
Constitutions arc not self-enforcing and depend on the judiciary to give them content.
The increased participation of the judiciary in the creation of political nonns makes for a judiciaJisation of politics, whilst the new role of the judiciary makes serious inroads into theories which argue for law's autonomy from politics: there is a politicisation of the judiciary (Carder 1994; Du Plessis and Carder 1994: 71; Sarkin 1997), perhaps even, if taken to extremes, a "juristocracy" (Davis 1995: 104). What distinguishes the transitional constitutional paradigm is its constructive relation to the political order in nux. To the extent that the interim and final Constitutions reflect a
IN The metaphor of a bridge appears in the postamble of the interim constitution and is extended by Mureinik in his discussion of that document (Mureinik 1994).
m Dennis Davis observes that the 1993 Constitution "heralded a legal revolution" (Davis 1996: 509).
126 S v Makwanyane 1995 (6) BCLR 665 (CC) at para 262. Similarly Justice Kriegler has observed that
"the Constitution ushered in the most fundamental change in the history of our country. It made everything new" (S v Mhfungll 1995 (3) SA 867 at 832).
m Karl Klare notes that "(a]djudication uniquely reveals the ways in which law-making and, by extension, legal practices generally, are and/or could be a medium for accomplishing justice" (Klare
t998: 147).
128 Etienne Mureinik writes "Parliamentary sovereignty teaches that what parliament says is Jaw, without the need to offer justification to the courts. In South Africa, since parliament was elected was
critical response to the legacy of apartheid, transitional constitutionalism provides an opportunity for justice.129 Substantive justice depends on the judiciary as much, if not more, than the legislature, and there is an urgent requirement for the judiciary to
produce an endogenous jurisprudence commensurate with the demands of the 'New South Africa' .130 Since the power of the Constitutional CourtJ31 vests, in accordance with constitutional theory, in the manner in which judges read, determine, interpret or otherwise understand the Constitution, it is vital to comprehend this process. A number of questions present themselves: What does it mean to read the Constitution?
What is it that judges do when they interpret the Constitution? Why is there so much controversy over how it should be interpreted? What is the relationship between the intention of the drafters of the Constitution, the Constitution as text, and the meanings ascribed to it? Constitutional interpretation is the subject of great controversy, not only within the academy and legal profession, but also publicly as it appears on the front pages of the evening news, where the ethical issues relating to the new political order - capital punishmentlJ2, amnesty for apartheid criminalslJJ, universal legal representationlJ4
, corporal punishment l3S, pomography l36, sexual preference]37 - are retried. To some extent, disagreement with the Constitutional Court's decisions is
··simply a case of whose ox has most recently been gored" (Tribe in Adams 1988:
176), but this is only to point to the significance of constitutional interpretation: unlike literary interpretation, constitutional interpretation has immediate material consequences for litigants; it is literally a matter of life and death (Cover 1986;
Derrida 1992a; Yablon 1992). Even the most 'civilised' orders do violence in their day to day operations: meaning is frequently written "in the medium of blood" (Cover
1983: 47).
elected only by a minority, the doctrine taught also that what Parliament said was law, without a need to justify even by those governed by the law" (Mureinik 1994: 32).
129 Sarkin remarks that the newly conferred power of judicial review enables the courts to limit the power of the State, including the manner and degree to which the organs of government intrude on the lives of the citizens (Sarkin 1998: 642).
IlO Alfred Cockrell notes that "the Constitutional Court has been faced with the task of creating a theory of constitutional review from nothing" (Cockrell 1996: I). Similarly Currie notes that the Constitutional Court "presides over a record of constilUtional jurisprudence that it has created itself' (Currie 1999: 144).
III The Constitutional Court was inaugurated in February 1995.
",
• S v Makwanyane and Another 1995 (6) BCLR 665 (CC).13l Azanian Peoples Organisation (AZAPO) and Others v President o/the Republic a/South Africa and Olhm 1996 (8) BCLR 1015 (CC).
Il4 S v Vermaas; S v Du Plessis 1995 (7) BCLR 851 (CC).
I3S S v Williams and Another 1995 (7) BCLR 861 (CC).
Il6 Case v Minister afSafety and Security (1996 (3) SA 617 (CC).
A central question for legal agents in the transitional period IS how most effectively to orchestrate a program of transformative constitutionalism,
a long term project of constitutional enactment, interpretation and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political institutions and power relationships in a democratic, participatory and egalitarian direction.
(Klare 1998: 150)
One commentator has remarked that the introduction of the Constitution has enabled a transition from a formal vision of law to a substantive vision of law in South Africa, a paradigm shift which introduces a new legal context in which considerations of justice may consciously and justifiably be included in legal texts (Cockrell 1996: 3,9,10).
This may be so, but only provided it is acknowledged that the Constitution is nothing apart from interpretations of it, so that for transformative constitutionalism to become a reality, the activity of interpretation must be carried out in accordance with the demands of transfonnation and, above all, justice.
Constitutional Court judges are confronted by the competing demands of interpretative freedom and interpretative restraint. On the one hand there is a promising constitutional text, redolent with expansive phrases and magnificent hopes of overcoming past injustice and moving towards a democratic future. On the other, it is argued that the meaning of the Constitution is not infinitely malleable and open- ended, and that there must be some constraints on the interpretation of the text. It is argued that judges must be unfettered in their pursuit of justice, but equally that they must act "in accordance with" the Constitution. This tension is reflected in the following statement by Acting Judge Kentridge in State v Zuma:
While we must always be conscious of the values underlying the Constitution, it is nonetheless 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 ConstifUlion does not mean whatever we might wish it (0 mean.l3s
The starting point of the debate on constitutional interpretation, perhaps the only one on which all disputants agree, is that for all interpreters. the words on the
Il7 National Coalition/or Gay and Lesbian Equality v Minister 0/ Justice 1999 (I) SA 6 (CC).
pages of the Constitution are the same. Thereafter, however, controversy rages. In addition to the aims I have already mentioned. this chapter shall seek to identify the institutional restraints that operate within legal interpretative practice in South Africa;
to examine the way in which the tradition of interpretative activities influe~ces current practice; and to investigate the assumptions and values of those who confer authority.
The importance of understanding the historically and culturally contingent contexts in which interpretation is possible cannot be overstated, especially in the current liberal era, in which the idea of the free and autonomous interpreting individual and the
"common-sense" or "plain meaning" view of language are dominant elements of liberal ideology worldwide (Balkin 1990).139 Against this conception of interpretation, I am particularly interested in claims made about the indeterminacy of language and the impact of this indeterminacy on constitutional discourse. ]40
Although I alluded to the effect of the indeterminacy of language on the rule of law in the previous chapter, it is as well to provide a summary here. In a liberal democratic society dedicated to the virtues of the rule of law. a central jurisprudential concern is that of unelected judges imposing their political understanding on society.
This is known as the counter-majoritarian dilemma. J4J The legitimacy of the judicial
lJK Slale v Zuma 1995 (4) BCLR 40 1 (CC) at para 17 (emphasis added).
Il9 J.M. Balkin, referring to current trends in American constitutionalism, writes that
the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed are likely to remain so for the foreseeable future ... Its intellectual leader, Justice Scalia, has even called for a constitutional jurisprudence of tradition, coupled with a return to an interpretative theory of plain meanings for statutes and original intention with respect to the Constitution. (Balk in
,990,,866)
The conservatism of the US judiciary and the theoretical bifurcation between the judiciary (most epistemologically conservative) and the legal academy (mostly epistemologically radical) is also documented by Steven Winter (1990: 1443 - 1447). The charge of judicial conservatism is equally sustainable in Great Britain (Douzinas and Warrington I 994a). Indeed, the denial of context in the creation of meaning by advocates of the "common meaning" approach in South Africa (such advocates have often studied in Britain) reflects how Britain, without its empire can still maintain cultural authority in postcolonial societies and the ways in which Eurocentric assumptions about race and rationality return time and again to haunt the production of legal writing in postcolonial seuings like South Africa. South African articulations of current Anglo-American interpretative conservatism abound. Ziyad MOIala, for example. warns that "judges should not, when faced with a text that is clear on its face, project their own preferences or values, nor create fringe meanings, but must instead uphold what the constitution requires" (Motala 1997: 153).
140 Singer explicates the requirements of determinacy and the features of indeterminacy in the following words: " A legal theory or set of legal rules is completely determinate if it is comprehensive, consistent, directive and self-revising. Any doctrine or set of rules that fails to satisfy anyone of these requirements is indeterminate because it does not fully constrain our choices" (Singer 1984: 14).
141 Dennis Davis writes that U[wJithin this conception, a judicial system which is empowered 10 test the validity of legislation approved by the majority in terms of substantive constitutional values is viewed as profoundly anti-democratic. It represents the politics of an unelected and unaccountable judicial elite
process turns on the power of the law 10 constram, direct and limit judges in the exercise of their power according to the law. This in turn depends on the capacity of language (featured in the Constitution, common law precedents and statutes) to constrain, direct and limit judicial decision-making. However, according to the radical indeterminacy thesis. language is indeterminate. unstable and incapable of expressing rules and principles that constrain judges.142 The capacity for indeterminacy is exacerbated by the generality and level of abstraction of the language of the Constitution. As Jeremy Sarkin observes,
[w]ords used in a Bill of Rights are often vague, and the interpretation of expressions such as 'life'. 'liberty', 'equality'. 'security of person' and 'equal protection' by individual judges is greatly affected by the judge's economic, political and social values. (Sarkin 1996b: 72)'43
Consequently, conclude proponents of the radical indeterminacy thesis, the doctrine of the rule of law fails.144 Rules themselves do not guide, determine or direct what results flow from them; the judge does. In short we do not have rule by law but rule by the politics of judges: the cat is out of the bag (Levinson 1982). As I argued in the previous chapter, I believe the radical indeterminacy theory is wrong about judges not in some sense being constrained by rules, and wrong about indeterminacy eviscerating the rule of law, resulting in nihilism and anarchy. However, indetenninacy, in the qualified form that I propose (perhaps I should refer to it as undecideabili tyl4s), presents opportunities for change and transformation.
immune from the wishes of the majority" (Davis 1994: 103). J return to the counter-majoritarian dilemma and point 10 its possible resolution in Chapter Five.
I~2 Legal texts, particularly constitutions, are frequently shot through with apparent and actual gaps, unanswered questions, conflicting provisions, ambiguities and obscurities.
14) Sarkin quotes as authority Michael Mandel: "You do not have to read the thousands of pages of contradictory judicial opinions on their meaning to realise that the words of the Chaner neither restrain nor guide the judges" (Sarkin 1996b: 73).
IoW Singer writes: "Detenninacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it. Detenninative rules
and arguments are desirable because they restrain arbitrary judicial power" (Singer 1984: 12).
I~S Deconstruction found its first adherents in the legal academy among members of the critical legal
studies movement. who were already commined to the radical indetenninacy critique and who mistook
Derrida's notion of "the play of relative indetennination" (Derrida 1988a: 144) for radical indetenninacy, an interpretation of deconstruction Derrida explicitly refused:
I do not believe I have ever spoken of"indetenninacy", whether in regard to "meaning" or anything else. Undecidability is something else again .... [U)ndecidabilty is always a delerminate oscillation between possibilities (for example of meaning, but also of acts). These possibilities are themselves highly determined in strictly defined situations (for example, discursive - syntactical or rhetorical - but also political, ethical etc.). They are pragmatically
South African judges have not, until very recently, showed much awareness of indeterminacy or its effect on the interpretative process and even when they have, its effect has been largely misunderstood or underestimated. The most common response to indeterminacy in South Africa has been denial. The theory of statutory interpretation developed by Justice L.C. Steyn (1981) and the South Africanjudiciary, adhered to by South African jurists until recently, is literalist-cum-intentionalist in nature. According to Steyn, interpretation of statutes is an exercise in determining the intention of the legislature (the drafters) as manifested in the words of the text: if the language is clear and unambiguous, the intention of the legislature is also readily ascertainable. Departure from the literal or "plain" meaning is only possible if language is ambiguous or obscure, in which case interpretative aids over and above the linguistic constituents of the text, (for example the intention of the legislature at the time of enactment), may be invoked. This methodology became known as the
"golden rule" of statutory interpretation.146 In S v Marwane, Miller JA had the following to say about the interpretation ofBophutatswana'sl47 Bill of Rights:
Whether our Courts were to regard an Act creative of a Constitution as it would any other statute or as an Act sui generis, when construing a particular provision therein, they would give effect to the ordinarily accepted meaning and effect of the words used and would not deviate there from unless to give effect to the ordinary meaning would give rise to glaring absurdity; or unless there were indications in the Act (considered as a whole in its own peculiar setting and with due regard for its aims and objects) that the legislation did not intend the words to be understood in their ordinary sense.148
Moreover, according to Galgut J in Government of Ihe Republic of Bophwatswana v Segale:
detemlined. The analyses that 1 have devoted to undecidability concern just these detenninations and these definitions, not at all some vague 'indetenninacy'" (Derrida 1988a:
148).
Derrida's description emphasises the pragmatic limitations of interpretation produced by institutional restraints such as grammar, politics and ethics.
146 The golden rule requires that the literal meaning of words of a statute must be adhered to unless this would lead to an absurdity of the same son or is at variance with the intention of the legislature (Du Plessis 1986: 109).
147 Bophutatswana was fonnerly an "independent homeland" created as such by apanheid architects to provide for supposed self-detennination by blacks within designated areas (approximately 13% of South Africa's total geographical area was allocated to approximately 80% of the population for this purpose). As part of race-based segregation, the idea of homelands died with apartheid and these areas have now been reincorporated into South Africa.
141 S v Marwane 1982 (3) SA 717 (A) at 749 D-E.