2.5 Transformative Adjudication
2.5.1 Transformative adjudication through the lens of substantive
As noted earlier, proponents of the classical liberalism philosophy object to transformative constitutionalism's (post-liberal) 'political nature'.298 That is to say, in the classical liberal philosophy, judges are proscribed from engaging in a "value-laden adjudicative style".299 In response to this objection, Langa300 comments on the role of courts under South Africa's transformative Constitution by pointing out that:
Judges bear the ultimate responsibility to justify their decisions not only by reference to authority but also by reference to ideas and values. This approach to adjudication requires an acceptance of the politics of the law. There is no longer place for assertions that law can be kept isolated from politics.
Hoexter301 concurs and argues further that it is "normal" and "inevitable" for the courts to be influenced by values since they are "social engineers, whether they know it or not".
The Constitution makes available to judges, the choice of values and norms, and further requires that judges make such choices openly and consciously, "in pursuit of a culture of justification".302 In this respect, Du Plessis303 contends that pursuant to the courts' transformative mandate, judges are to engage in interpretation and legal reasoning in such a way that espouses transformative constitutionalism as an interpretive style and
proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, meromotu, to raise the point of law and require the parties to deal therewith".
296 Mureinik 1994 SAJHR 31, 32.
297 Hoexter 2008 SAJHR 283-284.
298 Moseneke 2002 SAJHR 315-317.
299 Moseneke 2002 SAJHR 315-317.
300 Langa 2006 Stell LR 353.
301 Hoexter 2008 SAJHR 283-284; Penfold 2019 SALJ 87-88.
302 Hoexter 2008 SAJHR 283-284.
303 Du Plessis "Interpretation" 32/42.
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mindset, as well as a foundation for a substantive, social justice centred model of adjudication.304
Substantive reasoning, as Quinot305 rightly observes, is a "key element of transformative constitutionalism" as well as an important function of transformative adjudication.
Substantive reasoning is therefore ideally suited to fulfil the Constitution's transformative agenda.306 Hence, judges are obliged to honestly and openly inform the public about the
"substantive bases of their decisions", including the "values, policy objectives or political considerations" that truly motivated their final judgment.307 For this reason, Cockrell,308 one of the early scholars to evaluate the Constitution's call for value-based adjudication, states that:
The explicit intrusion of constitutional values into the adjudicative process signals a transition from a formal vision of law to a substantive vision of law in South Africa in terms of which judges are required to engage with substantive reasons in the form of moral and political values as opposed to the formal reasons that characterised pre- constitutional adjudication.
Citing Mureinik, Klare309 similarly notes that the Constitution provides a normative framework on which societal transformation can be effected. Thus, South Africa's democratic transition "is intended to be a bridge from authoritarianism to a new culture of justification", a culture wherein "every exercise of power is expected to be justified".310 Furthermore, Klare311 rivetingly propounds that among the "types of law-making, adjudication is, or is supposed to be, the most reflective and self-conscious" of them all.
Moreover, adjudication is, or is supposed to be, the "most grounded in reasoned argument and justification, and the most constrained and structured" by principle, text
304 Du Plessis "Interpretation" 32/42.
305 Quinot 2010 CCR 113.
306 Quinot 2010 CCR 113.
307 Quinot 2010 CCR 113.
308 Cockrell 1996 SAJHR 3.
309 Klare 1998 SAJHR 147; Mureinik 1994 SAJHR 31, 32.
310 Klare 1998 SAJHR 147; Mureinik 1994 SAJHR 31, 32.
311 Klare 1998 SAJHR 147.
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and rule.312 Constitutional and statutory adjudication as a whole is therefore expected to model and innovate "intellectual and institutional practices appropriate to a culture of justification".313
In light of the foregoing reflections, approaching transformative adjudication in a manner that embraces substantive reasoning is salient if courts are to develop and apply ESD as a constitutional value. In other words, courts are not only expected to develop and apply constitutional values in the adjudication of environmental law disputes, but are further required to provide reasons for their judgements by reference to values, and in this thesis's context, ESD to be precise. Former Chief Justice Langa314 captures this point clearly by noting that:
The Constitution demands that all decisions be capable of being substantively defended in terms of the rights and values that it enshrines. It is no longer sufficient for judges to rely on the say-so of parliament or technical readings of legislation as providing justifications for their decisions. Under a transformative Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values.
In this respect, substantive reasoning is in stark contrast to formalistic reasoning, an unduly conceptual, formal mechanistic or technical reasoning that shrouds questions about the underlying purpose or substance of the law.315 Klare316 asserts that formalistic reasoning deters the courts from determining the extent to which laws are plastic or pliable. Writing as a proponent of transformative adjudication, Cockerell317 propounds that
312 Klare 1998 SAJHR 147.
313 Klare 1998 SAJHR 147.
314 Langa 2006 Stell LR 351. Moseneke 2002 SAJHR 309, 316 succinctly lays out this point by stating that
"courts should search for substantive justice". Commenting on Langa and Moseneke’s work on substantive reasoning, Quinot 2010 CCR 113 notes that the former judges' "comments capture an important characteristic of the courts justificatory obligations under transformative constitutionalism.
Courts are not simply required to explain their decisions, but required to provide substantive justification within the particular normative framework of the Constitution. Judges are thus obliged openly and honestly to tell us what the substantive bases of their decisions are, including what values, policy objectives or political considerations truly motivated a particular outcome".
315 Hoexter 2004 Macquarie Law J 168; Quinot 2010 CCR 117-118.
316 Klare 1998 SAJHR 171.
317 Cockrell 1996 SAJHR 10.
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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.