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formalistic adjudication is flawed as it entails a "formal vision of the law", unlike transformative constitutionalism which is the ideal principle in adjudication because it represents a "substantive vision of the law" in pursuit of social justice. Put differently, whilst a "formal vision of the law" uses "the hard edges of legal rules" to screen off substantive reasons by courts, a "substantive vision of the law" however accepts that substantive reasons are now constitutionally mandated.318
Penfold,319 more recently, propounds that whilst some administrative law judgments are
"imbued with substantive reasoning", others persistently "stray into formalism". In addition, judges continue to invoke "judicious avoidance" or "judicious minimalism" as a means of justifying formalism and the limit in the kind of purposive and substantive legal interpretation and reasoning required by transformative adjudication.320 Dugard and Roux321 aver that the Constitutional Court has 'settled into' a form of adjudication that proves the court's reluctance to pronounce on issues that do not have to be determined for the sake of settling the case. As will be argued in Chapter 5, courts have invoked judicial avoidance in environmental adjudication by their reluctance to develop the meaning of ESD, in section 24 of the Constitution.
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values. Noteworthy is that constitutional values can be found inside the text of the classically defined values in section 1 of the Constitution (textual values) or outside the text of section 1 the Constitution (extra-textual values).325 On the one hand, if constitutional values are contained inside the text of the classically defined values in section 1, they form part of the Constitution itself and such values are described as enshrined in,326 embodied in,327 identified by,328 defined in or entrenched in the Constitution.329 A typical example is the conventional triad of constitutional values (dignity, freedom and equality) encapsulated in section 1(a) of the Constitution.330 On the other hand, the Constitutional Court has referred to values as underlying,331 underpinning,332 or
325 Kroeze 2001 Stell LR 267. Writing on Ubuntu as a constitutional value, Geduld Ubuntu as a Constitutional Value 69-70 cites Du Plessis 2005 SALJ 608 who also makes a distinction between extra textual interpretation and intra-textual interpretation. The author states that: "Intra-textual systematic interpretation refers to the scheme of the specific text to be interpreted… [and can] overlap with grammatical interpretation since a systematic interpretation requires reference to definition clauses in the text, for example, and since the preamble, long title and schedule assists in giving meaning to a specific text". However, extra-textual systematic interpretation refers to ''meaning generative signifiers in the textual environment". Meaning generative signifiers could include, "the Constitution, [the Interpretation Act], the political and constitutional order, the legally recognised interests of society and international law". Extra-textual systematic interpretation also bulwarks the notion that constitutional values play a crucial role during constitutional adjudication and statutory interpretation, as a ''meaning generative term''. Consequently, judges can rely on extra-textual constitutional values as an aid of statutory or constitutional interpretation.
326 Makwanyane para 300; Minister of Safety and Security; Curtis V Minister of Safety and Security 1996 3 SA 617 (CC) para 63 (hereinafter Curtis).
327 Makwanyane para 300; Du Plessis V De Klerk 1996 3 SA 850 (CC)(hereinafter Du Plessis)para 60.
328 Du Plessis para 86; Minister of Justice V Ntuli 1997 3 SA 786 (CC)para 32.
329 S V Prinsloo 1996 2 SA 464 (CC)para 7 (hereinafter Prinsloo).
330 Du Plessis para 91. The Constitutional Court has also decreed that the following amount to constitutional values that are contained in the text of the Constitution: (i) "values of the constitutional state, or the regstaat" as detailed in section 33 of the Interim Constitution (Makwanyane 156); (ii)
"respect for life in the context of the death penalty" (Makwanyane 111); (iii) "the values of openness and tolerance enshrined in the Constitution" (S V Lawrence, S V Negal. S V Solberg 1997 4 SA 1176 (CC)para 164); (iv) separation of powers (De Lange V Smuts No 1998 3 SA 785 (CC)para 178); "the fact that the prosecution must prove the guilt of an accused is regarded as a 'fundamental constitutional value'" (Prinsloo para 7); and "freedom of expression, freedom of conscience, religion, thought, belief and opinion are also constitutionally protected values" (National Coalition Jor Gay and Lesbian Equality V Minister of Justice 1999 1 SA 6 (CC)para 38). See also Kroeze 2001 Stell LR 270.
331 Coetee V Government of South Africa; Matiso V Commanding Officer Port Elizabeth 1995 3 SA 631 (CC) para 46 (hereinafter Coetee); S V Williams 1995 3 SA 632 (CC) para 37 (hereinafter Williams);
Zumapara 17.
332 Curtis para 100; Williams para 53.
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reflected in the Constitution,333 where the constitutional values are located outside the text of section 1 and can be inferred from the rest of the constitutional text.334
In this light, the content of constitutional values will not always be found inside the text of section 1 of the Constitution. This complicates adjudication as values outside the text of section 1 of the Constitution are needed to interpret legal texts".335 However these very
"values have to be given content to as well".336 That is why judges, arguably, invoke judicial avoidance in such cases, to lessen the cumbersome task of developing and giving content to values that the disputing parties would not have raised as an issue. Differently stated, and as will be explained further in Chapter 5, courts have exercised judicial avoidance by not developing and giving content to ESD, a value that this thesis classifies as a constitutional value that is reflected within the Constitution, although it has never been argued as such. In giving content to extra-textual values, Klare337 refers to Justice Mokgoro, who in S v Makwanyane stated that:
The interpretive task frequently involves making constitutional choices by balancing competing fundamental rights and freedoms. This can often only be done by reference to a system of values extraneous to the constitutional text itself...To achieve the required balance will of necessity involve value judgments. This is the nature of constitutional interpretation.338
Klare further refers to Justice Kriegler, who notes the following:
The judicial process, especially in the field of constitutional adjudication, calls for value judgments in which extra-legal considerations may loom large.339
The statements by the above-mentioned judges bulwark the argument that extra-textual values play a significant role in adjudication, especially during constitutional adjudication.
333 Makwanyane para 227; Williams para 79.
334 See Kroeze 2001 Stell LR 267-269 for a discussion of constitutional values outside the text of the Constitution.
335 Geduld Ubuntu as a Constitutional Value 61.
336 Geduld Ubuntu as a Constitutional Value 61.
337 Klare 1998 SAJHR 158; Makwanyane para 302-304
338 Makwanyane para 302-304.
339 Klare 1998 SAJHR 158; Makwanyane para 302-304.
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It therefore follows that these constitutional values are not packaged with pre-determined meanings. As Ackermann observes:
The judge may not rule ipse dixit, she may not simply declare that her word, by utterance alone, constitutes the law. What she says must reflect the law. In reality it is of course impossible to seek constitutional truth in such a disembodied way. It is always a human individual carrying on a dialogue with a text… 'One partner in the hermeneutical conversation, the text, speaks only through the interpreter. Only through him are the written marks changed back into meaning'. The text always speaks to an individual whose mind is not a clean slate when 'hearing' and responding to the text. The judges' slate contains the history of her own ideas through which the constitutional text filters.
The influence of a filter like this cannot be avoided. At best the interpreter can remain aware at all times of her own history of ideas when seeking to apply 'objectively' the conventional interpretive tools. One of the most important of these tools is of course the purpose of the particular constitutional provision, determined in the context of the Constitution as a whole and its overall purpose.340
Thus, the work of judges is not only to employ constitutional values in the limitation and interpretation of rights (i.e. transformative adjudication), but to further determine the meaning of constitutional values, albeit in a meticulous manner. To this end, transformative adjudication accords judges a great degree of discretion. A question is however raised: To what extent can such discretion be exercised? This question reveals the tension between constraint and freedom of adjudication. Addressing this perceived dilemma, Klare341 praises Justice Ackermann's inclination to delve into the content of constitutional values by making reference to scholars such as Isaiah Berlin. Klare,342 however, states that the judiciary still has a duty to explain why, for instance, the works of Berlin are preferred over those of Mandela or Biko.343 Klare344 convincingly contends that it is impossible to rid ourselves of the fact that judges will incorporate their personal ideological baggage into adjudication.345 Hence, as a measure of controlling the courts
340 Ackermann Human Dignity 27.
341 Klare 1998 SAJHR 176.
342 Thus Klare 1998 SAJHR 177 notes that it must not be accepted as self-evident and obvious why certain theories are used and preferred by the courts.
343 Klare 1998 SAJHR 177.
344 Klare 1998 SAJHR 177.
345 Klare 1998 SAJHR 162-163.
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unrestrained discretion, judges must motivate their decisions in a transparent manner such that the public is able to critique such decisions.346 This thesis notes that by providing such transparent motivations, judges fulfil, in part, their obligation to engage in substantive reasoning.
In consideration of the above, it is noted that deducing constitutional values from outside the text of the classically defined values in section 1 of the Constitution is legitimised through section 39 of the Constitution which refers to values that are based "on an open and democratic society".347 Section 39 in this respect indicates that values not expressly mentioned in section 1 of the Constitution could be developed by the courts. An instructive case in this regard, where the court used its discretion to develop and apply a value not explicitly mentioned in section 1, is that of S v Makwanyane.348 In this case, the court developed and applied Ubuntu as a constitutional value.349
Thus, the court's application of Ubuntu as a constitutional value gave meaning and content to the right to life since the value was seen to manifest in the principle of humanity and the respect of human dignity.350 Justice Langa,351 in particular, stated that the right to life had to be understood through the lenses of Ubuntu which required the respect of the dignity of a person. Therefore, dignity and Ubuntu were used as extra-
346 Van Marle 2009 Stell LR 294, 295, 298 echoes the same sentiments as Klare with regards to the indeterminacy thesis. Van Marle avers that two streams of thought can be identified when considering
"transformative constitutionalism within the South African context, namely the functionalist approach and the critical approach". The functionalist approach is "associated with a separation between law and morality, [but functions] as free-market positivists". The critical approach however "consists of a radical critiquing of law and politics". Thus, the "project of transformative constitutionalism in South Africa is a process of questioning the theoretical and ideological underpinnings of concepts within the law". In other words, judges are under an obligation to critically and deeply engage with their decision of the content of a constitutional value.
347 Section 39 of the Constitution.
348 Makwanyane para 111.
349 Makwanyane para 307.
350 Makwanyane para 307.
351 Makwanyane para 224.
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textual constitutional values that gave meaning and content to the right to life.352 The aforementioned reflects that constitutional values are not restricted to explicit mentioning within the constitutional text, but can also be found beyond the text of the Constitution or within text not explicitly labelled as value bearing. That is to say, constitutional values could be found within the constitutional text, although not explicitly mentioned therein.
The same should be the case when it comes to environmental adjudication.
Environmental adjudication should be informed by constitutional values. To date and as far as this study could ascertain, no constitutional value has been applied with sufficient certainty in environmental adjudication.353 It is upon this lacuna that this thesis avers that ESD ought to be developed and applied by the courts as a constitutional value in environmental adjudication. In other words, ESD, is the 'value element' the environmental right in section 24 of the Constitution aims to achieve. That is to say, 'ESD' is the value that forms the basis for environmental protection as per section 24 of the Constitution.
Hence, the reason why section 24 demands that environmental protection be achieved through "ecologically" sustainable development.354
As mentioned earlier, section 24 envisages that environmental protection be achieved through development that "places the environmental value at the centre-stage", hence the referral to "ecologically" sustainable development.355 This means that without ESD, as a constitutional value, "a mere mechanical evaluation of environmental rights,"356 social development rights and economic rights could result, with the consequence that
352 Dignity in this case is referred to as extra-textual because Makwanyane was decided under the Interim Constitution, which did not explicitly declare dignity as a constitutional value.
353 Although there is extensive literature on constitutional values (e.g., on Ubuntu, human dignity, equality), none, as far as this thesis could ascertain, have written on how ESD could be applied as a constitutional value in environmental rights adjudication. Although courts have mostly sought to give meaning to the ordinary sustainable development, none have attempted to give meaning and content to 'ecologically' sustainable development by construing it as a constitutional value in the context of section 24.
354 Section 24(b) (iii) of the Constitution.
355 Van der Linde and Basson "Environment" 50-24; Feris 2008 CCR 252.
356 Van der Linde "Environment" 50-24; Feris 2008 Constitutional Court Review 252.
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environmental protection and interests could be obscured or balanced away. This, as the thesis will show, is the current status quo.
Although some scholars have written on constitutional values, none (as far as this thesis could ascertain) have written on how constitutional values can be applied in environmental adjudication. To be precise, as far as could be ascertained, no scholar has written on how ESD, as articulated in the Constitution, could be used as a constitutional value in environmental rights adjudication, and how courts could employ the environmental rule of law to reach the outcomes of ESD. Thus, although judges have tried to develop and give content to constitutional values such as Ubuntu, the manner in which courts have attempted to develop constitutional values in the adjudication of environmental law matters is arguably less than satisfactory. It is on this basis that this thesis argues that, although ESD has never been argued as value bearing nor submitted as a constitutional value in environmental rights adjudication, it could be applied as one, given that it is reflected within the Constitution.
Although constitutional values can never have a single objective abstract and clear meaning, it remains obligatory for judges to determine their understanding of a value in a particular case.357 Kroeze358 adds that courts however fail to develop any substantial content of values, but rather choose to "simply state that something is not in line with a particular value". Thus, Kroeze359 states that she is not advocating for constitutional values to have clear and objective meanings, but for courts to at least elucidate and clarify the meaning of a constitutional value in a given case. Hence, during environmental
357 Kroeze 2001 Stell LR 273.
358 Kroeze 2001 Stell LR 273.
359 Kroeze 2001 Stell LR 264, 273, 275. The fact that judges often fail to give any content to constitutional values, is for Kroeze problematic as it shows that courts consider values as having certain and uncontested meanings. For Kroeze, such standpoint is proof of a larger problem, that courts are still rooted in formalism.
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adjudication, courts ought to also develop and elucidate on constitutional values, particularly on ESD as a constitutional value within the Constitution.
As Murcott360 states, courts must "develop the normative content of the environmental right so as to pursue" an environmental, social and climate justice-oriented vision of the environmental right, which includes reference to ESD as provided for in the right. Thus, this thesis submits that ESD could, by virtue of its place within section 24, be applied as a constitutional value in environmental rights adjudication. Put plainly, since ESD is decreed, by section 24(b) (iii), as an essential factor to be considered when advancing environmental protection, one could conclude that courts ought to develop and employ ESD as a constitutional value in environmental rights adjudication. Applying ESD as a constitutional value in environmental rights adjudication could facilitate the realisation of outcomes such as ecological integrity, environmental justice and poverty reduction.
However, ESD can only be applied as a constitutional value in environmental rights adjudication once courts fully comprehend what ESD entails, or at least what it should mean. This means that to fully apply ESD as a constitutional value, one must fully understand the history and principles that inform the concept. The following Chapter is an attempt at laying out the history and principles that inform ESD.