Constitutionalism, at its best, is a public activity. This book and its case studies have sought to show that this is as true of the celebrated South African example as anywhere. It might therefore be most appropriate to express the conclusions of this book in terms of what I believe they mean for different constitutional actors.

The most important task of an applicant before the constitution-building Court is not to persuade it what a particular provision of the Constitution should be understood to mean, nor even to convince it of the factual existence of a particular constitutional harm – this will be necessary, of course, but not sufficient. It is to show the Court a way in which it can intervene to constitutionally valuable ends. This will be principally an institutional point. It will be harder to demonstrate this the more it is true that action will require the Court to resolve newness unilaterally, and the more the action is the primary responsibility of some other institution which is not itself reneging on that responsibility in some significant way.

This point can seem almost wilfully designed to trip up traditional views of litigation, where proving to the judges what has happened, and persuading them that this is a violation of the law according to the best interpretation of the relevant provisions, is supposed to be the whole of a lawyer’s work. But it is not much of an exaggeration to say that the litigant in the constitution-building court who simply argues the facts and the applicable rights will win only by coincidence. Showing that a problem exists does not show the Court that other more constitutionally appropriate actors cannot or will not solve it, and demonstrating to the Court the best interpretation of a piece of law, even if the justices are inclined to agree, does not show that the Court should chose this moment to articulate it. The reason these considerations are important, and that the traditional understanding of lawyers’ work does not fit well, is because the Court’s task is not just to apply the law – or, perhaps more accurately, because the law it is tasked to apply is expansive and often significantly new, and the task must performed in a context where the mechanisms for constitutional enforcement are often themselves part of what is new and the Court’s actions are constantly exposed as potentially presumptuous. As a court of final appeal, interpreting the law is always going to be more important to the Court than settling the facts, but as a constitution-building court confronting newness, the decision of when to act, including when to interpret, is more important still.

For the defendant, in the government or otherwise, the most important task will be to show the Court that it does not need to intervene, and that it can instead show trust. Evidence of good faith and basic competence are the most valuable commodities here. That is not only because the Court is sympathetic to the difficulty of many constitutional tasks and will be pragmatic in its expectations. It is also – less obviously, perhaps, but more importantly – because if another constitutional actor is basically willing and able, then the Court will to an important degree assess that actor’s performance against the prospect of its own intervention, in light of its own institutional limitations and the other risks of judicial action. In that scenario, the most important thing is to show the Court that, if it shows trust, it will not look foolish. Signs of bad faith or serious dysfunction will vitiate this default logic. The limitations of judicial intervention will look much less decisive if they are being compared to action by a broken mechanism, or to no action by a defiant one.

The Court has a rather more sophisticated theory of when to intervene than scholarship usually appreciates, but it remains weaker on the question of how to intervene. This is a question offering considerable scope for creativity. The fact that traditional understandings of what is expected of litigants do not always fit the demands of constitution-building especially well is an indication that traditional understandings of judicial activity might not always fit it well either. The Court has exercised a range of new powers, but it has sometimes been slow to test the boundaries of novel forms of activity and been ad hoc when it does. Scholars have not been of as much assistance as they might have in this area, because their re-imagining of the Court’s institutional role has often been firmly directed to urging it to do more. There is value in exhorting the Court to test its limits, but scholarship informed by the Court’s more nuanced theory of when is likely to offer more assistance to the justices, particularly when it comes to showing how the Court might be able to adjust the terms of the constitutional equation somewhat by creative institutional action. We saw some moves in this direction in the last chapter, and partly due to recent personnel changes in recent years, the judges seem to be increasingly willing to reshape cases from the way they litigants have chosen to plead them in order to resolve them in a constitutionally optimal manner. Instead of rejecting a case because it seeks the wrong remedy or is framed in the wrong terms, there appears to be an emerging willingness to reshape it, thus allowing the court to take action on the problem without sacrificing its established craftsmanship and concern for institutional points. This work to reframe the terms of the constitution-building equation is important and needs scholarly support.

Even more important is that the constitution-building account shows us how much constitutional activity happens outside the Constitutional Court, and how much that external activity affects the part that does happen inside it. As an effort to challenge a predominantly Court-centric scholarship, this book has shared some of the sins of its target, but it can at least claim to show why constitutionalism in South Africa should be taken seriously as a broader public activity. Scholarship does exist on the constitutional work done outside the court system – particularly on social movements – but its sum is in any event far below what would be proportional to the amount of constitutional activity that happens there, and important topics are neglected. To take just one example, South Africa has produced one landmark statute after another in the years since 1994, and continues to do so.Footnote ¹ Individual laws can be criticized, and delays are chronic, but it is nevertheless true that an extraordinary legislative record has been built up. While lawyers naturally look at individual statutes in their fields, the constitutional significance of this work as a body, and of legislatures in the constitutional structure, remains underexamined.

For South Africans, and for South African constitutionalism’s many friends abroad, the crucial significance of activity outside the Court should come as encouraging news. Many of the stories told in this book demonstrate how the foundations of great constitutional change are built, and how quite small groups have sometimes done a lot of this construction work, or have been able to trigger it. We are, perhaps, used to a picture in which civil society activity is a clash between settled camps, jostling for small advantages, with decisive change only really possibly if some significant social shift occurs to reset the rules of the game. Sometimes that is accurate, and there are many issues in South Africa with set, powerful groups on all sides, or where this pattern is establishing itself. But since 1994 the country has nevertheless quite often been in a different position. A considerable consensus (albeit an overlapping one) has existed around the need for several kinds of change, some of which has yet to come about. Many implications of the 1996 Constitution remain to be worked out, because the process of getting the new ideas and values into the text is, as we have seen, not the most important factor in realizing their implications in reality. In this situation, the constitution-building work that can be done by small groups of people is not small, especially now that they have precedents for how best to go about this work. While thinking about what it would take to get the constitution-building Court to announce a particular idea to the country as its commitment or to take a certain decision or function out of the hands of other actors is not the only way to plan for social change, its emphasis on how to tackle the uncertainties of newness might make it a good one.

That said, the most important underpinning of the Court’s great cases to date has been provided by government action, and a good part of what civil society activity has achieved has been done via government channels, impacting on legislation, or law reform proposals or policy documents. A major theme of this book has been the extent of the ANC’s government’s contribution in the years since 1994, and the extent to which this goes unconsidered, still less given the constitutional credit it deserves. There are many blots on the ANC’s record (and the ink has been falling faster recently), and it is also true that its record in relation to the Court is often better than in many other respects. But if South African constitutionalism itself is so celebrated, and the Constitutional Court would have been at least a nominee for best young court around the world in several years since 1994, the ANC might well have been in the running for best young constitutional government in a good few of those years as well. That there will be resistance to this idea reflects the extent to which suspicion of the government is entrenched, and also the extent to which South Africans tend to make absolute judgments about their government and their politics rather than relative judgments with a calibrating eye on similar contexts elsewhere in the world. It would take much broader comparative study, and more complete examination of the record of the ANC, to test this claim fully, but while it is here offered as a provocation, it is one worth thinking about seriously.

Of course, even if I am right about this happy situation there is no guarantee that it will continue. It already seems a safe bet at this point that South African politics will get more competitive, and that the temptations and rewards of both populism and patronage politics will grow. Among other things, that would reduce political slack, and thus also reduce the incentives and opportunities for government to support policies that are counter-majoritarian in relation to public opinion. Fortune-telling aside, such shifts are not necessarily bad news: they might be good for policies with majoritarian support, such as socio-economic redistribution. They are also not necessarily bad news for the Court. A more fractured, competitive polity is one that may well require the Court to play a larger power-broking role – a classic way for a court to achieve institutional security by being useful to those with power, reinforced by the fact that a fractured power system is less able to pose a threat. Something similar can be true of problems with government inefficiency and incapacity, an issue of huge importance at this point (and one where even small reform gains could produce large benefits). These often manifest as problems at the provincial or local level, problems that the national government is often embarrassed about and keen to fix, and thus problems that may present themselves to the Court as interactions between parts of government, rather than clashes of the Court versus the powerful. (These situations also offer important space for strategically collaborative civil society action.) None of this dispels the possibility that South Africa might move into the more difficult territory for judicial review contemplated in the work of Theunis Roux and others writing on fragile constitutional systems, but this book does not tell us whether or not that will happen. What it does do is show what South African constitutionalism has actually depended on since 1994, so that we can properly appreciate the significance of future developments as shifts in that pattern.

As we look back at the years since 1994, this book sees three things in particular.

The first is a point about the 1996 Constitution. It is aspirational and transformative, but while that it is a way to say that it is a justly celebrated vision, it is also a way to say that it is very open-ended and that its implications are often uncertain. As a result, even as we admire them, we can also see that the words on the page are less decisive than they might be. That is not just because, as with any law, writing down words does not translate automatically into change in the world. It is because compliance with such a text is often a matter of degree to be maximized, rather than a binary matter of obeying or breaking. It because, as we have seen throughout the book, the words on the constitutional page are variously realized in the world, in the acts of those holding democratic power, and in ideas of public status. These are the things that matter most, because they represent the reality in which judges must do their work. These are what fill in what is uncertain in the text, or underwrite that filling in by judges. The constitutionalism matters much more than the Constitution.

This has important and underacknowledged implications for the act of interpretation and the work of the Court. While its critics have been invoking the text and all its promises, battling to defend the idea of transformative rather than preservative constitutionalism, and describing the bolder things the Court could be doing if it would only try, the Court has mostly been confronting a different set of questions. It has had to focus much more often on how and when to protect and promote the promises of the text than on what those promises are – which is why the same is so often true of the points on which the Court itself splits. The line the Court has been working out is often not the one between preservative and transformative constitutionalism, which preoccupies scholarly writing, but the late Chief Justice Langa’s line between being transformative and being legislative (which, as is not always remembered, is a line Karl Klare’s seminal 1998 paper on transformative constitutionalism aimed to draw too).Footnote ² And because the Court itself is much less court-centric than its critics, it has usually begun its enquiries by asking what other institutions are doing, or might do, and only secondarily about its own powers and how far they can be pushed. This book has attempted to understand the value of the Court’s approach by examining factors that are not prominent in the existing scholarship: the challenges of newness and the value of support when judges must confront it; the (related) extraordinary value of trust and the work that creating it takes; and the multi-institutional thinking that follows naturally as soon as the importance of support and trust come into focus.

Finally, the worth or otherwise of this approach depends very heavily on the society in which it is tried. In a different polity, support might be lacking, trust might be naïve, and a court might be forced to go it alone, or look to other institutions mainly for the purposes of trying not to provoke them. In a different polity, the competing imperatives of constitution-building would be more difficult to align, a constitution-building court would have to make tougher choices between them, and it would be harder and harder to describe its work in terms that could be built into a coherent and satisfyingly legal account. In such a polity, the underlying interpretative approach of this book would often fail, and we would be left either just to describe what had happened, as realists, or to document its legal deficits, as lawyers.

But post-1994 South Africa has mostly not been this polity, or so I have argued in this book. The events of the early 1990s have long been taken as evidence that South Africa was fortunate in her politics. With the passing of that extraordinary time, the inevitable return to politics as normal comes as something of a disappointment. It has sometimes been deceptively easy to mistake the inevitable shift from great to ordinary for the decline from good to bad – easier still because post-1994 South Africa really has experienced shifts to bad politics too. Yet South Africa has often also been fortunate in her post-transition constitutional politics, as we have seen repeatedly. We have seen how each of the most famous members of the Court’s canon has been built on the work of others, and been defended by them. We have also seen how a good many of its most criticized decisions represent judgments that court intervention would not be the best way to promote constitutional ends, a judicial luxury that does not exist unless other actors are also sometimes working sincerely for those goals. And we have seen situations where government entities have not been fulfilling their constitutional responsibilities, but where other actors have responded and have helped the Court to compensate for this failure. It is in this sort of state that court centrism is often unconvincing, and where taking real constitutional practice seriously is often legally satisfying.

This book has looked backwards, because it has argued that we need to reconsider the ways in which we understand interpretation, South African constitutionalism and the work of the Court. But I will offer one prediction. Despite all the criticism levelled at it, for all the wishing that the ANC were less powerful and multiparty political competition more real, despite all the work that must still be done and all the change we must still aspire to produce, I suspect that we will come to look back with increasing appreciation, and with nostalgia, at the constitutionalism that was possible in the first years of building the South African Constitution.