Since the demise of apartheid, South African constitutionalism has been celebrated around the globe. The 1996 Constitution has been described as ‘the most admirable constitution in the history of the world’, and the process of drafting it and its 1993 interim predecessor has been held up as the fullest realization of the ideas and methods of post–Cold War constitution-making.Footnote 1 The Constitutional Court has quickly assumed a place among the world’s highest profile judicial bodies; a South African amongst global constitution-watchers can often bask in reflected glory.Footnote 2 This constitutional success is an extraordinary result in a country where many in the 1980s did not think ordinary constitutionalism would even be possible.
But many scholars, particularly within South Africa, paint a picture in bleaker shades. The Constitutional Court’s judgments often come in for sharp criticism, particularly because alongside its globally celebrated judgments the Court has, apparently inconsistently, handed down some deferent and seemingly stilted ones. The justices are attacked for not doing enough to develop South African law and respond to the manifest injustices of South African society. The concern extends beyond the Court. Threats to the Constitution from the dominant African National Congress (ANC) are regularly identified. Sujit Choudhry has argued that, given the ANC’s continued electoral power, South Africa should now be treated as a dominant party democracy that will suffer ‘the colonization of independent institutions meant to check the exercise of political power by a dominant party’. For Choudhry, the question is not whether this will spread to the judiciary; ‘the only question is when’.Footnote 3 Veteran commentators have reached the point of lumping South Africa with Russia as a ‘disenchanted democracy’.Footnote 4 Zapiro, South Africa’s legendary and increasingly cynical political cartoonist, has drawn the Constitution with letters cut away from the title so that it reads simply ‘The Con of the Republic of South Africa’.Footnote 5
No serious observer can deny the concerns (although she also cannot deny that collapse has apparently been imminent in South Africa for some decades now). But this book is not an exercise in fortune-telling. Whatever might happen in the future, it is an attempt to look back and understand what has happened to date, to explain which forces and mechanisms have mattered, and to try and understand why some see so much going wrong while others see so much to celebrate and to envy. The discrepancy in views can be particularly sharp and puzzling when applied to this book’s focus, the South African Constitutional Court. Somehow, the Court is seen as being on both sides of this dichotomy, with the very same judges apparently contextual, progressive guardians of social justice at one moment and closed-minded, heartless formalists the next. It is fair enough to charge a court with inconsistency, but the combined effect of the compliments and charges directed at the same group of judges can sometimes approach the point of implying judicial schizophrenia.
I believe that these uncertainties reflect more than just the truisms that no Court gets every decision right and that some level of reasonable professional disagreement about judgments is inevitable. I believe they speak of deep and basic disagreements about how we should understand the legal project in which the Court has been engaged. In the 2008 words of South Africa’s constitutional law treatise, ‘in the past nearly decade and a half of constitutional democracy in South Africa, no discernible theories of constitutional interpretation have emerged’.Footnote 6 The phrasing is suggestive of the problem: it is not merely a lack of acceptable accounts, but the lack of any plausible candidate at all. We are struggling even to take conceptual hold of the interpretative activity that has been happening. My claim in this book is that the existing ways of understanding interpretation under the South African Constitution are inadequate to its actual operation. The reason why ‘no discernible theories of constitutional interpretation have emerged’, I argue, is because many scholarly accounts of constitutionalism in South Africa, focused on how it should work, have paid too little attention to how it does work.
As a result, I claim, some key mistakes are made. Scholarship is too court-centric, and gives far too little credit to the role that has been played by the ANC in government. There is a pervasive tendency to praise the ANC up to the point where the 1996 Constitution came into force, and thereafter to consign it to the role of threat. There is no point in being starry-eyed about the party. This book will not add much to the plentiful existing criticism of the ANC, but it by no means denies that many legitimate concerns that can be raised about the ANC, from specific policy areas like education to infamous scandals like the arms deal to general problems like corruption and mismanagement, nor that these concerns have been growing of late. But these points are already notorious, and this book is concerned with correcting an imbalance by focusing on the parts of the picture that are neglected. The ANC’s contribution to the success of South African constitutionalism has been immense, and that contribution did not end when the drafting of the constitutional text did. It is inaccurate and unfair not to acknowledge this, whether we are thinking of giving due credit to the past or deciding more instrumentally how to think about the ANC going forward: we have more than one reason to want people living in South Africa, ANC members and not, to be aware of the prouder strains of the organization’s recent history. And if we are trying to understand constitutional law or the Constitutional Court, the failure to acknowledge this contribution is also misleading. If we depart from the premise that the Court has mostly operated in a politically hostile environment, we will cast the Court as a somewhat precarious guardian at the gates, helped only by some resilient civil society actors – a story that we are primed for in any case by familiar understandings of impact litigation campaigns and the position of courts in emerging democracies. We will miss the way in which the Court’s great cases have really been broader, public, political stories, and we will miss the extent to which the Court has had the luxury of being part of a significantly common exercise in building a new state and society. We will see the Court’s great decisions as more unilaterally bold than they are, and so will find its decisions not to be unilaterally bold in other situations more puzzling than is actually the case. We will find it harder to take seriously the possibility that a decision by the Court to defer to another branch might not always be dictated by political fear or institutional caution or old-fashioned restrained legal habit, and that a decision to defer might really be a decision that the Court does not need to intervene because the other branches are also doing important constitutional work, and might be doing it better than the Court could. We will see how existing understandings of South African constitutional activity have problems with each of these ideas, and how each sheds important light on the Constitutional Court’s approach to its cases. The Court has indeed played its hand well, and this book will argue that the Court is often better than its critics recognize. But the Court has also often held good cards, and we should not forget that in this metaphor the ANC has often been the dealer.
The result of this move to take more seriously the facts surrounding the Court and its cases is what I will call the constitution-building account, an account of the work that the Constitutional Court has been performing since its creation in 1995. This focus on the highest court has its ironies coming from someone ostensibly opposing court centrism. I adopt it partly because it is also the focus of most of the standard constitutional understandings with which a useful engagement has to start, but it also serves a broader goal. In the context of a broader enquiry into the surrounding facts, the focus on the Court forces us to engage with all the other institutions and actors its interpretative activity involves. Constitution-building compels us to stop seeing the Court as the place where all constitutional meaning begins and where all constitutional bucks stop, and to start seeing it as one institution among others. Constitution-building works best when it is a joint activity, and the successes of the South African system reflect that the Court’s work has often been supported, in various ways, by the efforts of other actors and institutions.
The constitution-building account, however, aims to be an interpretative account – that is, a legal, constitutional account of the Court’s work that can be used to explain and defend its activity in legal, constitutional terms, rather than merely the analyzed factual description one might get from a political scientist. It adopts a conscious strategy of trying to take the reality seriously as legal activity by seeking to articulate and test the constitutional arguments on which it rests. As such, it needs to explain how this social and political activity can fit into a book about legal activity, and how arguments that draw on these data can properly be treated as legal, constitutional arguments. This book is not a work of legal theory, but I will aim to say enough here to render plausible the claim that the constitution-building account is defensible as a legal account as well as a descriptively adequate one, and that it can therefore reply to other legal accounts on their own terms. Since the problem of how to relate legal activity to social and political activity arises in any legal system, my arguments in this regard borrow from abroad, and in particular on work from the United States. This may merit brief comment. Some perceive US constitutionalism as too old-fashioned, idiosyncratic, conservative and/or focused on negative rights to be useful to South Africans or other newer members of the global constitutional club. It is true that US doctrine is more often distinguished than followed by South African courts. But in drawing on US theory, I follow in the footsteps of leading scholars of South African constitutional law,Footnote 7 and I would add that there is much the long rich history of the US experience can teach us about how constitutionalism actually works.Footnote 8 It is mere chauvinism to rule all this out by stipulation.
But my focus in this book is on the South African case, and my analysis will be comparative only in the sense of looking outside in order to better understand within.Footnote 9 With five election cycles and two decades of post-apartheid government behind us, it is time to start taking stock. It is time to ask whether South African constitutionalism, poster child of the progressive and the transformative, whose birth was heralded around the world, has the resources to understand itself.Footnote 10
A Beginning: Makwanyane Stories
S v. Makwanyane, the Constitutional Court’s first significant decision which invalidated the death penalty, is the crown jewel of South African constitutionalism.Footnote 11 But if Makwanyane is an emblem, of what exactly is it emblematic? After more than twenty years, several hundred more Constitutional Court decisions, and a great deal of scholarship, local and international, we still do not have a good answer, and in this we will be able to start seeing the limitations of the ways in which South African constitutionalism is currently understood.
For many, Makwanyane is the model of a bold, value-driven approach to judging, and of a South African human rights jurisprudence that protects the interests of even unpopular minorities (murderers) against the position of the majority, without fear or favour. But if Makwanyane is to be understood in this way, as a decision that set the pattern for subsequent rights cases, it is striking that examples of its heirs are so hard to find. Although the many friends of this understanding of adjudication have kept a vigilant look-out, the truth of the matter is that the best example of this model today is still Makwanyane. Even the LGBTI equality decisions, the most likely candidates to be its successors, lack Makwanyane’s expansiveness.Footnote 12 So it is no surprise that those who saw Makwanyane as a promise of how the new court would be, or a symbol of how it should be, are often inclined to view this subsequent dearth as a betrayal, an abdication, a weakening of nerve, a failure to follow through.
Also interesting about this first view of Makwanyane is that it treats as emblematic of South African constitutionalism a decision that may be the Court’s single most unpopular finding among South Africans. It is not always attacked in name, or even as a court decision, but consistent majorities before and since have supported the death penalty. The 2005 decision in Mohamed, relying on Makwanyane to hold that South Africa should not have deported a criminal accused to the United States without obtaining a guarantee that the death penalty would not be imposed, attracted undiminished public criticism.Footnote 13 A ban on the death penalty in the face of popular support for it is of course not unique to South Africa, but this first story does not spend enough time asking whether such an unpopular example represents a good model for a new constitution and court, nor why its unpopularity with a majority has not produced decisive backlash against Makwanyane and the stand the Court took in it. The role of the political party elected by that majority is conspicuous by its absence.
A second, more political Makwanyane story can be written. Its title might be ‘Chronicle of a Death Penalty Invalidation Foretold’. The ANC had long supported the abolition of the death penalty by the time the Court decided the case in 1995. Black defendants had historically been strongly disproportionate recipients of the death penalty.Footnote 14 When the ANC and the ruling National Party (NP) moved towards negotiations in the late 1980s, a moratorium on the death penalty was one of the important concessions the government made. As the negotiations proceeded, the ANC wanted to abolish the death penalty, but reached deadlock with the NP, which wished to retain it. To get past the deadlock, they agreed on a right to life provision that was textually neutral on the issue, with the explicit intention that this arrangement would leave the issue to be decided by the Constitutional Court.Footnote 15
Thus when the Court sat to consider the issue in 1995, its members could be as sure as judges in a counter-majoritarian case probably ever get to be that the ruling party intended them to decide the issue and would back up an anti-death penalty decision.Footnote 16 And the ANC has since repeatedly done so. Days after the decision (and just before local government elections) the NP demanded in Parliament that the issue of the death penalty should be put to a referendum, asking Parliament to ‘[a]llow South Africans to instruct the judiciary to let justice be seen to be done’.Footnote 17 Minister of Justice Dullah Omar and future Deputy Minister of Justice and then-ANC MP Johnny de Lange responded by praising Makwanyane, from which Omar quoted at length and which De Lange predicted ‘shall go down in history as one of the great judgments that has been handed down’.Footnote 18 Joined by speakers from the Inkatha Freedom Party (IFP), Democratic Party (DP) and Pan Africanist Congress (PAC), they castigated the opportunism of the NP’s populist pre-election appeal in light of the negotiated transition and the importance of respecting the new constitutional nature of the state and the Court’s authority, while reminding the NP that other things could be put to referendum too. In Omar’s words:
The proposal that a referendum should take place calls into question the very basis of the constitutional state and the notion of the core values of the Constitution, which should be beyond the reach of temporary majorities and the role of the Constitutional Court … The key to the whole negotiated settlement in South Africa is the move away from parliamentary sovereignty to constitutional supremacy. The constitutional state depends on the establishment and nurturing of an independent, impartial constitutional court. Every single party which is committed to the notion of a constitutional state needs, therefore, to ensure that nothing is done to undermine the new constitutionalism. This includes building respect for the Constitutional Court and helping to establish its independence … The complex arrangement contained in the Constitution to place core values beyond the reach of a temporary majority will be at risk if the NP’s proposal for a referendum is accepted. Not only does it undermine the Constitutional Court; it opportunistically invokes the principle of majoritarianism at the expense of constitutionalism, in respect of only one issue, the one in which it believes that the majority is baying for blood. However, it ignores others which are also controversial. Why should we not submit other issues of major concern to referendum, such as the future of languages in our country, the national anthem, the flag, the need for radical land redistribution, the unpopular property clause in Chapter 3, as well as the far-reaching amnesty provisions? Why should public opinion in these matters not also be tested by referenda? [Interjections].Footnote 19
The referendum was not called. The ANC’s position, of course, suited its preferences on the substance of the issue (although several senior ANC members also thought the issue of the death penalty should be put to a referendum).Footnote 20 But the terms in which Omar stated that position are notable nonetheless, and the ANC government has continued to hold this line. Although constitutional scholarship pays no attention, in the years since Makwanyane Parliament has heard many submissions from the public and in private member’s bills seeking the reinstatement of the death penalty, and the ANC has consistently rejected them and upheld Makwanyane. A representative example comes from a 2008 parliamentary committee considering public comments. On a submission from a Mr. NK Govind, the minutes record: ‘The first issue raised related to the re-instatement of the death penalty. The legal advisor recommended that the Makwanyane argument applied and therefore the amendment not be applied. Mr Gaum (ANC) agreed.’ There the matter ended.Footnote 21 The most recent in a long chain of such small episodes, a November 2014 reply to a presidential question, continues to hold the Makwanyane line nearly twenty years on.Footnote 22
This political detail offers an explanation for Makwanyane‘s expansiveness – it will be rare indeed that judges can be as certain of a ruling party’s counter-majoritarian stance or its willingness to accept a counter-majoritarian outcome – and its durability. This second Makwanyane story, accordingly, illustrates the critical importance of taking social and political facts seriously. But the second story’s most worrying deficiency is the account it offers us of Makwanyane as an interpretative act, or rather, the account it fails to offer. If the fearless rights-defender story seems to spend too much of its time inside the legal materials, the political story seems strangely removed from the judicial reasoning itself. The result matters, but there is a strong whiff of the legal realist idea that the Court’s reasons were tacked on to a result preordained. Explaining Makwanyane as a product of the political circumstances seems to come at the cost of rendering rather vestigial or peripheral Makwanyane as the duly interpreted legal implications of a value-driven constitutional text.
The further effort to take the reality interpretatively seriously will respond to this concern, and I will be offering my own Makwanyane story based on that approach in a moment. But my prior concern is with the simple fact of these two stories and the divide between them. For my claim is that this pattern of a politically disinterested or naïve interpretative story running along in parallel with an interpretively barren political science story, neither of them completely satisfactory, is a general feature, and defect, of post-1994 understandings of South African constitutionalism. A key reason why a workable account of South African constitutional interpretation has not yet emerged is because accounts are only of one sort or the other, having the strengths and weaknesses of their type. If an account’s Makwanyane story is court-centric and tends towards applauding bold, proudly value-vindicating counter-majoritarianism, it struggles to explain a post-Makwanyane world in which the Constitutional Court has almost always played a more cautious and subtle game, and in which much of what happens cannot be explained without considerable reference to actors outside of the Court. But if an account’s Makwanyane story embraces the politics and the reality, it struggles to offer an account that can reasonably be considered interpretive, based on and resulting from fidelity to the legal materials.
Why does this divide matter? It is easy to imagine a possible world where it would not matter. After all, we are used to the idea that there is a gap between reality and the law: we are supposed to put the facts next to the rules and, to the extent that the facts do not match the rules, judge the facts as illegal, as unconstitutional, or at least as less constitutional. On this view, if post-Makwanyane constitutional practice has not lived up to Makwanyane‘s promise, then that constitutional practice is failing to that extent to live up to what the Constitution demands. This is simple enough, and as we will see, many scholarly accounts understand the situation in just this way. The second Makwanyane story, on this view, states the facts that stand to be judged as constitutionally acceptable or defective, measured according to the legal standard of the first story. The political moment may explain the historical significance of the result, but this background is not seen as relevant to the legal question of whether the decision is correct or incorrect, satisfying or unsatisfying.
However, that is not the only possible world. Suppose the second, political Makwayane story is not only purporting to tell us what happened – the facts – but that it was the only way that so bold a decision could have happened – the political reality. Suppose it wants to tell us a causal story about how the system actually works and how the result actually came about, such that if we want another Makwanyane, its implication is that we will need the same causal factors, the same conducive political circumstances, or something else that can do the same work. In this world, those who view post-Makwanyane constitutional practice as (to some degree) a disappointment or a failure to follow through will find the relationship between law and reality more complicated. The gap between subsequent reality and the bold legal view of the first Makwanyane story is still present. But in this world, the causal account of the second Makwanyane account tells us of the extraordinary work needed to close that gap. It also suggests that whether the gap gets closed is not necessarily up to the Constitutional Court. If Makwanyane is to a significant extent a product of its political context, especially the stance of the ANC leadership, then we should expect that the work of closing the gap will be heavily a matter of such political factors in other cases too. In this world, if post-Makwanyane South Africa has failed to deliver on that decision’s promise, the failure looks more like a failure of the polity, or a result of the limits of what was practically possible in that polity, than it does a failure of the Court’s interpretations (with a legitimate debate still to be had about how much judicial activity alone can affect a polity and change what is possible within it). This account has a growing resonance as the glory days of the transition recede and less edifying ordinary politics resumes.Footnote 23
Now consider a third and final possible world. In this world, the political Makwanyane story is not just telling us how things happened, or how they had to happen. It is pointing to how constitutionalism works – how things function, in a manner that is constitutionally appealing or at least acceptable. In this world, the gap between the first, bold Makwanyane story and reality is complicated still further. If the tale told by the first Makwanyane story is not only not happening, but the reality of what is happening is a functioning constitutional system, we should be willing to ask why we are hanging on to the first Makwanyane story. We will not necessarily want to say that it is wrong. It is a reasonable theoretical position of eminently respectable academic parents, and its place in the ongoing competition of ideal constitutional visions is fair enough. But we should question seriously whether we should proceed any longer with it as our blueprint to what constitutional adjudication is supposed to be. It might be a good blueprint or it might be a bad one, but it is not, apparently, an accurate blueprint of the functioning constitutional society before us. Whatever its virtues, then, it is likely to be a poorer guide to understanding the system, critiquing its actors, and thinking about reforms than an account that more accurately grasps what is going on.
My claim in this book is that post-apartheid constitutionalism in South Africa has existed much more in this third possible world than in either of the other two. The failure of post-Makwanyane South African constitutionalism to live up to the first Makwanyane story in fact reflects the inadequacies of the first Makwanyane story and the view of constitutionalism that it represents. It needs retelling. To the extent that post-Makwanyane constitutionalism does lie in the first two possible worlds, my claim is that it lies much more in the second than the first. Its features are shaped to a much greater extent by the limits of practical possibility and the nature of South African political activity than by interpretative choices made by the justices, the dominant target of most scholarly attention and criticism. The constitution-building account, situating constitutional activity in a broader institutional and political context, is intended to respond to this imbalance. Its conscious bid to offer an interpretative, constitutional account, in turn, will aim to show why this story can be a satisfactorily legal replacement for the first Makwanyane story.
If the second Makwanyane story were simply about naked political calculation, then this effort might well be doomed at the outset. We might be able to dress up the story in legal clothing, but it would not be an interpretative story worthy of the name. What is crucial to the argument about Makwanyane, and to this book’s broader argument, is that the political story is much richer than this. As a result, it is possible to do what the second Makwanyane story does not: to see how the public, political story is part of, partly constitutive of, the legal reasons. In their different ways, the various judgments in Makwanyane seek to position the abolition of the death penalty as the necessary implication of the national decision to be a post-apartheid society. The abolition is powerfully understood as representing a desire to break out of the status of human rights pariah, to ‘feel fulfilled that humanity has taken us back into its bosom’, to ‘never, never and never again … suffer the indignity of being the skunk of the world’, as President Mandela had put it in his inauguration speech the previous year, in words written by Thabo Mbeki.Footnote 24 The full extent of what is included in the idea of rejoining the global human rights community is, of course, anyone’s guess, but the death penalty is an unusually prominent symbol of what that community rejects, and it is the abolition of the death penalty as a symbolic, not-pariah, not-apartheid thing that Makwanyane is most deeply about. That Makwanyane is so celebrated by the international human rights community as a symbol is unsurprising, because the decision was in a real sense perfectly designed to be a symbol of all that was celebrated by that community, to mark South Africa’s return to it.Footnote 25
This presentation entirely suited the strategic interests of the Court, allowing it to represent itself as a fresh institution, not subject to the baggage of having been an apartheid-era body complicit in oppression, as the rest of the court system was.Footnote 26 But less often noted is how much it would have suited the ANC leadership, too. The ANC, too, wished to mark South Africa’s return to the global community, as something achieved under the party’s guidance and due to its commitment to human rights for all. The Makwanyane symbol had strategic value to the ANC just as it did to the Court, and it similarly spoke to something deep about the commitments of the organization.
What the second Makwanyane story gets wrong, therefore, is that it sees that the abolition result was favoured by the ANC and foreshadowed by the political history of the issue, but does not take the link between the politics and the decision any further. The result is its awkwardness as an interpretative story: if the Court was just following the politics, then the reasons it gave are relegated to secondary status. What the second story misses is that the link between the politics and the decision is much more extensive and happens at the level of the legal reasoning. I will refer to this kind of public backing or political support for an idea as its public status, something distinct from whether the idea can be located in the constitutional text (though public status and textual status are of course often linked). This public status, I argue, is something the constitution-building court can legitimately consider in its interpretative activity. That claim may raise concerns, but let us set those aside for a moment in order to see how taking such considerations into account can help us understand what the first Makwanyane story misses, which is how all the interpretative considerations lined up in the decision. The circumstances of the case were such that the Makwanyane court was operating in the context of powerful ANC preferences, but that strong pull was in very much the direction in which the Court wanted to go. The political leadership wanted the Court to exercise this counter-majoritarian power, wanted a bold human rights decision that abolished the death penalty and made manifest the constitutional achievement. And so the constitution-building pieces fell into place. In context, the Court could boldly assert its own, still-uncertain institutional authority and that of the Constitution, fulfilling the duty to advance and entrench the new constitutional arrangements. It could give strong voice to textual imperatives to give effect to the values of ‘dignity, equality and freedom’, and could show how this purposive obligation could give effect to the neutral provision that ‘everyone has the right to life.’ Indeed, such was the Court’s sense of freedom that it could enthusiastically issue ten concurrences, each beginning the exploration of the new text, a number it has never subsequently got even close to approaching since. This sense of freedom stems from the fact that the Court could do all of this without in the least upsetting the ANC – as we have seen, the true position was completely the opposite. As a result, the Court could strongly and publicly emphasize the most critical premise of constitutionalism by asserting the Constitution as supreme over majoritarian politics, while actually strongly respecting the interests of the majority party.
That is not quite to say that every constitution-building imperative pointed to boldness in Makwanyane. The Court’s decision does come with some potential legitimacy costs, since many South Africans would be upset by the Court’s claim that South Africa had committed itself against the death penalty – as manifest in the regular bids to overturn the decision Parliament has received ever since. Makwanyane also sees the Court, unusually, stepping in to decide a deeply contested and potentially empirically complex question, rather than leave it to the legislature. That the Court elected to do this is a product of the unusual political situation. Given that the Court’s institutional imperatives lay so strongly in presenting itself as a fresh institution, and given that its longer-term authority was so strongly bound up in the idea of being an institution not controlled by majoritarian politics, the legitimacy coin came down on the side of decision and abolition. But obvious differences of opinion among the judges about whether and how public opinion was relevant to their decision foreshadow the harder questions which later cases, arising in less conducive circumstances, would pose for the Court.Footnote 27 If Makwanyane is an emblem, what it signifies here is a question, not an answer, and we will see that it is an enduring question for a Court charged with enforcing a strongly aspirational constitution that applies to contested issues as much as settled commitments.
That some controversy existed can be detected in some notable features of the main judgment, written by then–Constitutional Court President Chaskalson, to which others have drawn attention. The judgment makes what remains a rare foray into the drafting history in order to find that the negotiating parties intended the Court to settle the question of the death penalty’s constitutionality, providing an extraordinary kind of justification for the Court’s decision to do so. The judgment also relies quite heavily on the absence of evidence that the death penalty would deter criminals or otherwise lower crime rates. Some see this as an area of weakness in Makwanyane‘s abolitionist dam, because it represents a respect in which the decision does less than rule that the death penalty is inconsistent with South African constitutional values in any circumstances.Footnote 28 That concern is probably overdrawn, especially in light of the status the judgment has come to assume: Makwanyane would take some overruling, even if the death penalty really could be shown to reduce crime rates. But the observation is nevertheless important because it points to how, at least for Justice Chaskalson, the institutional considerations and the extent of public opposition remained reasons to craft the decision with some care, and some circumspection. Makwanyane is not the epitome of counter-majoritarian boldness, because the conditions, while unusually favourably, were not entirely conducive.
We are now in a position to see what the first Makwanyane story misses. It takes Makwanyane to stand for certain principles, such as dignity, and certain ideas, such as a commitment to a progressive vision of the global human rights consensus and a counter-majoritarian boldness in defending those ideas and those principles. Since the Court has not always followed through on these things in later cases, the first story cries inconsistency. But that conclusion only follows if we assume, as the first story does, that we should abstract the Court’s findings from their context, and take the Court to be setting a precedent for how it will act in all future cases regardless of context. That assumption has its roots in a vision of the Court as an institution of moral principle, detached from politics and elevated above public opinion. This is, as I said above, a familiar and time-honoured picture, but it is not a picture of what the South African Constitutional Court is. Instead, there is an important sense in which Makwanyane is not an exercise in abstract moral reasoning. Theunis Roux has aptly noted the way in which, for all its many references to foreign law, the main judgment in Makwanyane makes little effort to articulate an understanding of the value-laden terms it works with, on the way to asking whether the death penalty complies with those understandings.Footnote 29 What this reflects, above all, is that the Court is not engaging in abstract constitutional reasoning and then considering a concrete issue in light of the result. Instead, it is receiving into constitutional law something of pre-existing public status – and that something is not a set of abstract principles of dignity and the right to life. If this conception of the Court’s activity can be defended as a legally satisfying account of the Court’s constitutional role, the assumption of the first story will stand exposed. We will not need to separate the Court’s interpretative work from its political context, and we will recognize that constitution-building activity will usually have to play out in contexts less conducive to judicial expansionism than Makwanyane’s.
Makwanyane‘s importance, therefore, lies in the symbolic work it did as the first decision to establish the key ideas of constitutionalism in South Africa. Its significance as a matter of legal doctrine is only the more limited idea that these abstract ideas and principles will inform the Court’s future assessment of its constitutional duty in future contexts, where other relevant factors might be different, the context might be less hospitable, and the case for judicial action less appealing. I submit that regular constitution-watchers will agree that this is a much more accurate description of what Makwanyane’s provenance has actually been: its ideas may be found, more or less diluted, in many of the Court’s subsequent decisions – just seldom if ever as boldly as in the extraordinary circumstances of the original decision. The dominant theme has become Makwanyane’s secondary idea, mostly coming out in the concurrences, that the Court is not overruling the majority but instead expressing the nation’s deeper will, represented by the Constitution. This classic constitutional line (and, sometimes, fiction) makes far more sense to the real life of a Court in ordinary times than the candid dismissal of public opinion, which only the extraordinary circumstances of Makwanyane could embolden the Court to employ.Footnote 30
There is an epilogue to the Makwanyane story, which offers some support for my reading of what the case was really about and my more muted view of the picture of constitutional adjudication it represents. What seems to have been generally ignored at the time of the decision is what I will later call a question of infrastructure – how exactly was the order going to get implemented? What was to happen to the death row prisoners, sentenced to a now-unconstitutional sentence? The ironic epilogue to South Africa’s constitutional emblem is that it would be over a decade before this question received an answer, while the prisoners languished in legal limbo, ignored by the authorities. The beneficiaries of the Court’s first rights case would have to become the subject of the Court’s first ever structural interdict before their status under the new constitutional dispensation would be finally resolved.Footnote 31
Makwanyane‘s epilogue offers some support for the idea that the case was about symbolic commitments, not prisoners: once the constitutional trumpet was duly sounded, everyone stopped paying attention to Messers Makwanyane and Mchunu. That, admittedly, is not unusual for a constitutional case in a highest court, where the issue frequently transcends the facts that brought it there. But the real significance of the epilogue is as a salutary early reminder of the realities of constitution-building. Bold, progressive findings are not necessarily enough to affect concrete interests, even those as familiar and comparatively simple and close to the judiciary as the administration of prisoners. The limits under which the Court operates are not necessarily those posed by the much-discussed over-powerful party of liberation, but are often the basic limits of administrative and oversight mechanisms and other mundane problems of ordinary governance, and simple uncertainty. Thus this point is not much of a criticism of the Court, which would after all have had no reason at the time to issue a more intrusive remedy, given that the ANC government was, of course, supporting the court’s order. But the third, retold Makwanyane story, with its epilogue, gives us a much better sense of the real nature of constitutional adjudication in South Africa after 1994. It illustrates why it is that, for all the importance of the bold principles of the first Makwanyane story, we need a more complete account of the realities of constitutional adjudication. It shows why it is crucial to remedy the limitations of the second Makwanyane story’s view of political context so that we can use this to understand our interpretative practice better. Only then can we achieve an adequate view of what this first great case really is: an admirable decision whose content was significantly formed by the political movements of South African society, whose proud counter-majoritarianism was and continues to be underwritten by the ANC; a decision whose boldness was already tempered by an awareness of the harder questions of legitimacy and deference to come, whose authors were without contradiction both sincere and astute, both politically aware and legally engaged, whose order turned out to be hampered by practical limits, failures of lower-level government, and problems of access to justice; its best admired around the world, its problems frustratingly ordinary – as this decision, Makwanyane is a true emblem of post-1994 South African constitutionalism.
Beyond Makwanyane
The pattern of the first two Makwanyane stories, I claimed, reflected general features of South African constitutional understandings, and it is in this light that we can see the wider significance of the retold Makwanyane story. As a rough but still substantially accurate generalization, we can think about two ways of writing about South African constitutional law, one associated with the first Makwanyane story and one associated with the second. Let us begin with accounts associated with the second. They can be called non-interpretivist or realist. The basic first question of this sort of account is: what do constitutional actors actually do in this system? To this question, accounts of this sort might give merely descriptive answers: politicians pressure courts in these sorts of cases, the courts resist or give in under these sorts of conditions. They might also go further and evaluate the data. They might try to show, for example, that a court’s moves were strategically wise in that they helped the court avoid a destructive backlash or allowed it to build up its authority gradually in the face of a powerful party. Accounts of this sort are realist, in other words, because they aim to capture and analyze the behaviour that is really going on. What makes them non-interpretativist is that they have no resources to tell us whether what a constitutional actor did was constitutionally correct or at least constitutionally valid or permissible. At most, they can tell us whether what was done was strategically wise or foolish, good or bad for stability, and so on. They are legal accounts only in the sense of being accounts about legal things.
A small but notable school of writing on South African constitutionalism offers accounts of this sort. For example, an important paper by Iain Currie describes the Constitutional Court as practicing ‘judicious avoidance’, using the sorts of minimalist tactics described by Cass Sunstein. Currie presents his argument as an attempt ‘to describe and defend’ this minimalism, following Sunstein’s defences of minimalism as democracy-promoting, mistake-minimizing, agreement-facilitating, and so on.Footnote 32 But while Currie seems comfortable with the legitimacy of the behaviour he has described, he does not offer a constitutional argument for it in the sense of showing why the practice he describes is constitutionally permitted or required by a plausible reading of the constitutional text, as opposed to just being a good idea.Footnote 33 The most important work in this school is by Theunis Roux. He has argued that, in certain cases, the Court has ‘compromised on principle’ in order to avoid taking legally principled stands that would have risked serious political reprisal from the powerful ANC. Initially, Roux presented this as an accurate description defensible on simple pragmatic grounds, and therefore fell squarely in the realist camp.Footnote 34 His recent book offers a more general and more nuanced picture, in which some cases are still explained as blunt compromises on principle but in which this is part of a broader ‘adjudicative strategy’ which aims to explain what he views as ‘remarkable about the Court’s achievement’, which is ‘not just that it handed down some very fine decisions, or that it managed to stay out of political trouble, but that it did each of these things without compromising its ability to do the other.’ On this picture, the Court’s achievement is to have stayed legal enough to preserve its reputation as an adjudicator according to law and respond to ‘the relatively strong pressure exerted by South African legal-professional culture to decide cases in a principled way’, while being strategic enough to respond ‘to the need to avoid a debilitating attack on its independence’.Footnote 35 The result, then, is a set of decisions ‘not absolutely determined by law’ in which the Court gets away with a few genuine compromises on principle that are too infrequent to damage its reputation for principled decision-making, combined with a larger set of decisions in which the Court selects interpretations that are not the best reading of the text as a matter of pure legal principle but are at least legally plausible and are strategically more prudent.Footnote 36 The result is therefore still realist: Roux will repeatedly accept that the Court has articulated doctrines that are not the best legal interpretations of the Constitution, and only rarely thinks that the cases he examines are fully justifiable as a matter of constitutional principle.Footnote 37 Like the second Makwanyane story, his account can explain a great deal, but it is not able (because it does not set out) to rebut legally the standard interpretative criticisms of the Court, which indeed it often accepts are correct in strictly legal terms.
This matters when one compares the realists to the other school, classically interpretivist and associated with the first Makwanyane story. In contrast to realists, who look first to the world, the basic question of these accounts is: What do the legal sources mean? Accounts of the interpretivist sort try to tell us whether an interpretation was a good or a bad reading of the constitution and other legal materials, or whether an action was permitted according to such a reading. This is the core of traditional lawyerly business, so it will come as no surprise that most scholarly work on constitutional law in South Africa falls into this category (examples to follow). This school offers legal accounts not only in the sense of being about legal things, but also in the sense of working in legal terms.
The fact that these two schools operate in different terms means they constantly talk past each other. Realists argue that intepretivists are asking for what they cannot plausibly have, while interpretivists quite fairly respond that their legal arguments stand unrebutted and that if the Court does not follow them then this is illegitimate. Thus, for example, David Bilchitz, among many others, has devoted considerable attention to arguing that the Court’s socio-economic rights interpretations are textually incoherent and do not do enough to make the protections of these vital interests real for impoverished South Africans.Footnote 38 Roux explicitly accepts Bilchitz’s arguments as legal criticisms of the Court’s approach, but will dismiss the ultimate relevance of this: ‘As soon as one accepts, however, that the [Court’s] strategy in these [socio-economic] cases has been to devise a review standard that allowed it greater flexibility to manage its relationship with the political branches, much of the force of this criticism falls away.’Footnote 39 Each side appreciates the other’s arguments but does not see them as an adequate response to their own. A similar problem dogs the debate between Currie’s minimalism and the more expansive approaches of its opponents. He and opponents can at least engage on whether Sunstein’s minimalism is an accurate way to describe what the court is doing or whether the virtues associated with minimalism outweigh its vices.Footnote 40 But for opponents such as Alfred Cockrell and Stu Woolman, the key objection to minimalism is instead that it is constitutionally inappropriate or incorrect.Footnote 41 The Constitution, they think, demands more than minimalism, and while Currie thinks more expansive action could be a mistake, he does not have an argument that the Constitution does not demand more (or, more strongly, that it really demands less). Unless we have an argument of this sort, this debate is as insoluble as the first one.
The suspicion may arise that the interpretativist ambitions of the constitution-building account are just a matter of taking prudential positions and dressing them up in legal clothing. After all, it is not too difficult to see how one might phrase Currie’s argument, or Sunstein’s, or Roux’s, in terms of a constitutional argument about, say, the Court’s duty to promote a constitutional good like democracy, or to defend the integrity of a constitutional structure, namely itself.Footnote 42 One might further suspect that merely redescribing the arguments like this does not take us any further towards resolving them. These are fair concerns. However, my claim in this book is that the real practice of South African constitutional law is not only different to what traditional accounts take it to be but often better than they acknowledge, and that if we take it legally seriously it will often yield richly satisfying legal answers. In this respect, my approach bears a family resemblance to Stu Woolman’s recent book on South African constitutionalism. Woolman claims that some current ‘understandings of freedom in the context of the self and the social’ are ‘errant’ and that ‘the way we think about the self is incorrect’, but also that if we adjust our thinking and our ways of operating, including in the context of constitutional law, we may well find this reality appealing and be satisfied as lawyers by the sorts of answers to which it leads us.Footnote 43 I (like Roux) am more concerned with understanding what has happened in South Africa than offering my own theory of how to proceed, and this book is accordingly less theoretically ambitious than Woolman’s and engages a smaller slice of reality, but it has a similar relationship to that reality. It will not always be the case that what actually happens is legally defensible or appealing, and it is important to insist on this if we are to retain the idea that law is not just what happens and so preserve law’s autonomy. But even the less appealing parts of real practice will help us understand the Court’s actions, something that will become important in contexts as awkward as Makwanyane’s was congenial. And where the reality is more attractive, this approach will allow us to appreciate that some decisions seen as bad are in fact appealing exercises in constitution-building logic. The Court’s approach will emerge at least as something legally intelligible and internally consistent, and, as I hope to show, something often more defensible and appealing than any existing account on either side of the current realist/interpretivist debate takes it to be.
Between us and this oh-so-neat finessing of the debates of South African constitutionalism stands the need to extend the lines of the third Makwanyane story to the broader record of the Constitutional Court’s activity. Although my principle focus will be on cases and their broader social and political context, the enquiry will necessitate examining South African constitutionalism from a number of different angles and drawing on work from several disciplines. I begin in Chapter 2 by addressing the threshold resistance, should the reader feel it, to the idea of bringing social and political considerations in legal interpretation properly so called. I will offer reasons to think this is not a decisive objection to the constitution-building account, and that instead interpretative activity that takes account of social and political considerations might be not just legitimate but constitutionally better than interpretative activity that confines itself to more traditionally legal sources. Chapter 3 begins to confront real practice, defending the universally criticized decision on the right to vote in New National Party v. Government of South Africa and explaining how the constitution-building account can bring out the deep consistency in the Court’s jurisprudence on voting rights. It will show the Court playing a particular institutional role, and Chapter 4 will seek to explain why the issue of the Court’s role has been misunderstood, but also strangely neglected, by current understandings of South African constitutionalism. It will interrogate influential accounts based on the constitutional negotiations and the nature of South Africa’s constitutional project, and discuss their limitations. Chapter 5, in turn, will move on to flesh out the constitution-building account as a constitutional argument in response. Chapters 6 and 7 apply this account to the Court’s famous LGBTI equality judgments and its decisions, famous and infamous, on democracy. Chapters 8 and 9 will move into still more contested territory, considering the socio-economic rights cases and several decisions on equality and religious rights that represent some of the Court’s most criticized judgments. The constitution-building account will allow us to see how the Court’s socio-economic rights decisions are widely misunderstood, and are in fact much more defensible than they are usually thought to be once we understand their logic. It will also allow us at least to understand the vilified equality decisions, and to see why the real reason that they should be criticized is that there were better ways to approach the cases within the terms of the Court’s own constitution-building logic than those the Court adopted. Understanding and developing these approaches is, I conclude, of the utmost importance to both bodies of law (which are far more similar than balkanized scholarship reflects) and to the future work of the constitution-building court.
A consequence of my approach is that the discussion of cases must often be broadly contextual and therefore sometimes detailed. For this reason, it is necessary not only to rely a little on the reader’s forbearance but also to be selective, even in the context of a Court whose entire jurisprudence comprises only a few hundred decisions to date. This book therefore seeks to examine key members of the South African constitutional canon, testing its claims against the cases that would be seen as the Court’s best and worst decisions by the professional community surrounding it.Footnote 44 In order to further combat sample bias, the chapters often engage comprehensively with the Court’s decisions in the particular areas in which these canonical or anti-canonical cases fall. This approach aims to strengthen the claim that the constitution-building account really is descriptively adequate to the Court’s practice in contexts good, bad and ordinary, rather than merely to the features of some hand-picked examples. It also aims to show the extent of the Court’s consistency within and across its case law. I claim this is far greater than the divides between celebrated cases and failures, or principled cases and political compromises, would suggest, and it offers support to this book’s claim that the Court’s work regularly repays lawyerly efforts to take it legally seriously.
