VOL 129

(Part 1)
2012

NOTES
STRIKING A BALANCE BETWEEN THE WILL OF THE PEOPLE
AND THE SUPREMACY OF THE CONSTITUTION*
DIKGANG MOSENEKE
Deputy Chief Justice of the Republic of South Africa

INTRODUCTION
The Chinese curse goes, ‘may you live in interesting times’. We certainly do
live in tumultuous times in South Africa. It is so that every dawn is a new day.
But in our country every dawn seems to pose trenchant questions about our
polity. The questions are about our society in transition, about good
governance, about the effectiveness of constitutionally ordained public
institutions, about our unequal society and its proxy of race, about an
economy that creates wealth but not jobs, about fair labour practices and
higher productivity, about meaningful access to social goods and services —
education, health and housing — for vulnerable groups, about corruption
and efficient use of public resources, about free expression and an open
society, about the potency of civil society, about the environment and about
everything else. There are clearly more questions than answers.
These open, if not critical conversations suggest that there are no holy
cows or orthodoxies beyond public scrutiny. No boundaries are finite and no
lines are incapable of being re-drawn or even crossed. In many ways, we live
in a society of unimaginable freedom and infinite possibilities. The overarch-
ing constraint is whether our institutional arrangements and the cognate
norms are well suited to realise the just society the preamble to the
Constitution envisions.
In the past few months persistent questions have sprung up about the
legitimacy of the Constitution. The argument starts from the premise that the
Constitution is an awful bargain shaped by inapt concessions during the
negotiations in 1993. The compromise, the argument goes, is characterised
by two primary blemishes. First, the will of the people does not find full voice

* This is a published version of the Claude Leon lecture, delivered by the Deputy
Chief Justice at the University of Cape Town on 29 September 2011.

9
10 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

within constitutional arrangements. For that reason the legislative and

executive power in the hands of the parliamentary majority is empty.
Secondly, the constitutional constraints over the exercise of public power
stand in the way of government delivering on social equity. That is another
way of saying that the Constitution has shielded the historic economic
inequality from change and in turn obstructs the effective economic
participation or freedom of the majority. The sub-text of this argument is that
the will of the people on the project of transforming society is frustrated by
the supremacy of the Constitution and the role courts fulfil in policing its
compliance.
These are intractable issues related to our constitutional arrangements.
They demand difficult answers. In the time and space, at my disposal, I can
only confront a few questions prompted by my judicial role. There are no
obviously correct answers. For that reason I do not intend to furnish
close-ended answers, but rather I recognise that there is a voluble public
conversation around these difficult matters. I have chosen a few questions
and I will seek to answer each in that sequence.
The core question is whether our constitutional arrangement permits an
equitable balance between democratic will and constitutional supremacy?
That enquiry, in turn, gives rise to a number of sub-questions:
(a) What is the constitutional value of democracy? In other words, why and
how best must the will of the majority, acting through their representa-
tives, be given effect?
(b) Why has our constitutional architecture opted for constitutional
supremacy and what is its purpose?
(c) Can a balance be struck between popular will and the supremacy of the
Constitution?
(d) Has our jurisprudence found that equitable equilibrium between
majoritarianism and constitutional supremacy?

WHAT IS THE CONSTITUTIONAL VALUE OF

PARLIAMENTARY DEMOCRACY? WHY AND HOW BEST
MUST THE WILL OF THE MAJORITY, ACTING THROUGH
THEIR REPRESENTATIVES, BE GIVEN EFFECT?
As young activists, bent on destroying the monster of apartheid, we shouted
many demands. However, I cannot recall a demand of the struggle that
resonated with my revolutionary zeal more than ‘one person one vote’. It
was and remains a primal demand for that essential element of democracy
that effect must be given to the will of the majority. The right of each of us to
participate in the democratic process is in effect a cluster of vital entitlements.
These entitlements are emblematic of our equal worth and equal citizenship.
They include the right to form a political party and to participate in its
activities, including to campaign for it or its causes. Each citizen has a right to
free, fair and regular elections for any legislative body established, which
includes the right to stand for public office and, if elected, to hold office. An
NOTES 11
exercise of these rights would result in representation in Parliament, in
provincial legislatures and in local authorities. Thus, to give content to these
rights, the Constitution envisages a multi-party system of democratic
government premised on universal adult suffrage and a national common
voter’s role.
A complaint that the democratic will of the people is undermined merits
serious attention because, if true, it strikes at the very heart of the
constitutional arrangement of our democratic state. Before one probes
whether this complaint is justified, let us look at what the Constitutional
Court has said in dealing with the principle of the ‘will of the majority’
required by the Constitution. Concurring with Langa DCJ’s decision in
Democratic Alliance & another v Masondo NO & another 2003 (2) SA 413 (CC),
Sachs J observed in para 42:
‘The requirement of fair representation emphasises that the Constitution does
not envisage a mathematical form of democracy, where the winner takes all
until the next vote-counting exercise occurs. Rather, it contemplates a
pluralistic democracy where continuous respect is given to the rights of all to be
heard and have their views considered. The dialogic nature of deliberative
democracy has its roots both in international democratic practice and indige-
nous African tradition. It was through dialogue and sensible accommodation on
an inclusive and principled basis that the Constitution itself emerged. It would
accordingly be perverse to construe its terms in a way that belied or minimised
the importance of the very inclusive process that led to its adoption, and sustains
its legitimacy’.
Sachs J went on to write (para 43):
‘The open and deliberative nature of the process goes further than providing a
dignified and meaningful role for all participants. It is calculated to produce
better outcomes through subjecting laws and governmental action to the test of
critical debate, rather than basing them on unilateral decision-making. It should
be underlined that the responsibility for serious and meaningful deliberation
and decision-making rests not only on the majority, but on minority groups as
well. In the end, the endeavours of both majority and minority parties should
be directed not to exercising (or blocking the exercise) of power for its own
sake, but at achieving a just society where, in the words of the Preamble, ‘South
Africa belongs to all who live in it .. .’. At the same time, the Constitution does
not envisage endless debate with a view to satisfying the needs and interests of
all. Majority rule, within the framework of fundamental rights, presupposes
that after proper deliberative procedures have been followed, decisions are
taken and become binding. Accordingly, an appropriate balance has to be
established between deliberation and decision.’
In a multi-party system of democratic government a one-party state is
excluded, as is a system of government in which a limited number of parties
are entitled to compete for office (see United Democratic Movement v President
of the Republic of South Africa & others (African Christian Democratic Party & others
Intervening; Institute for Democracy in South Africa & another as Amici Curiae)
(No 2) 2003 (1) SA 495 (CC) para 24). In the UDM case (supra) it was also
said in para 26:
12 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

‘A multi-party democracy contemplates a political order in which it is

permissible for different political groups to organise, promote their views
through public debate and participate in free and fair elections. These activities
may be subjected to reasonable regulation compatible with an open and
democratic society. Laws which go beyond that, and which undermine
multi-party democracy, will be invalid.’
There can be no doubt that the Constitution envisages that the will of the
majority shall prevail because our state is a democratic one. That said, the
Constitution poses a particular notion of democracy. Universal adult fran-
chise is the primary building block in constituting legislative and executive
powers. But this majoritarian primacy is subjected to the provisions of a
supreme Constitution. The Constitution makes plain that the Bill of Rights
is the cornerstone of democracy in South Africa and that it enshrines the
rights of all people in our country and affirms the democratic values of
human dignity, equality and freedom. In a firm injunction, the Constitution
requires the state to respect, protect, promote and fulfil the rights in the Bill
of Rights, which in turn may be limited when it is justifiable to do so.
So, the democratic ethos and practice are indispensible and constitutive of
our constitutional state. The will of the majority when expressed in some
formal act through its duly appointed and elected representatives must be
given effect and courts are bound to do so, provided that the democratic will,
if translated into a law, policy or conduct, bears a rational and legitimate
purpose and has been passed by a procedure authorised by the Constitution.
Simply put, valid laws bind everyone, but one cannot by-pass the supremacy
of the Constitution by merely asserting the parliamentary or executive will of
the people. It must be a will expressed within the constraints of the
Constitution.
That leads us to the next question. We must then ask why our constitu-
tional architecture has opted for constitutional supremacy? Before traversing
that question, I set out a brief excursus on the history of parliamentary
sovereignty and constitutionalism in Europe, Africa and our own country.

WHY HAS OUR CONSTITUTIONAL ARCHITECTURE OPTED

FOR CONSTITUTIONAL SUPREMACY, AND WHAT IS ITS
PURPOSE?
The balance between — and premium placed by most modern democracies
on — parliamentary democracy and the supremacy of the Constitution bears
the stamp of historical experiences. In Europe, this balance was struck in the
wake of the Second World War. On that continent, there has historically
been a deep political hostility toward judges and it was long assumed that
constitutional supremacy and, as a concomitant, constitutional review by
courts, was incompatible with parliamentary governance lest it lead to a
‘government of judges’.
However, in the wake of the Second World War, constitutional drafters
recognised how unchecked legislative power and, in particular, unchecked
delegation in Nazi Germany, Fascist Italy and Vichy France had undermined
NOTES 13
‘both the democratic-deliberative function of legislatures and emergent
conceptions of constitutionally protected rights of individuals’ (Peter L
Lindseth ‘The paradox of parliamentary supremacy: Delegation, democracy,
and dictatorship in Germany and France, 1920s–1950s’ (2004) 113 Yale LJ
1341 at 1348). Drafters of, for instance, the West German Basic Law (1949)
and the French Constitutions (1946 and 1958) thus sought to define
‘the fundamental rights of individuals and the core normative responsibilities
that the legislative branch could not lawfully delegate to the executive or
administrative sphere. Each country also eventually established a body external
to the legislature — the Federal Constitutional Court in West Germany and the
Constitutional Council in France — to enforce delegation constraints against
the legislature itself, thereby concretely signifying the abandonment of the
unchecked parliamentary supremacy that had been a cornerstone of republican
orthodoxy in the interwar period’ (ibid at 1348–9).
The democratisation of post-war Europe has ‘transformed the judicial
basis of the European state’ (Alec Stone Sweet ‘Constitutional courts and
parliamentary democracy’ (2002) 25 West European Politics 77 at 79). Modern
constitutions typically proclaim a long list of human rights and establish
mechanisms for defending the normative supremacy of the constitution,
stipulating procedures for how the constitution may be amended (ibid). At
the same time, however, US-style judicial review was rejected by post-war
constitutional drafters as political elites remained hostile to sharing legislative
functions with the judiciary. In contrast with US judicial review, many
European countries have limited review to specialised constitutional courts
— an approach largely following Kelsen’s model of constitutional review.
Kelsen recognised that the exercise of constitutional review would
embroil the constitutional court in the legislative function, but nonetheless
sought to distinguish between parliamentary legislative acts and what the
constitutional courts do (see Hans Kelsen ‘Judicial review of legislation: A
comparative study of the Austrian and the American constitution’ (1942) 4
Journal of Politics 183; Hans Kelsen General Theory of Law and State (1945)
267–9 and 272). The former, he suggested, are ‘positive legislators’ — they
make law ‘freely, subject only to the constraints of the constitution’ (Stone
Sweet op cit at 81). By way of contrast, constitutional judges are ‘negative
legislators’ — their legislative authority is ‘limited to the annulment of statute
when it conflicts with the law of the constitution’ (ibid).
Although still influential today, Kelsen’s distinction between positive and
negative legislators is complicated by the inclusion of human rights in many
modern constitutions and the awarding of constitutional status to such rights.
A rights’ jurisprudence, Kelsen warned, would undermine the distinction
between negative and positive legislators: as judges sought to define the
content and scope of such rights — which Kelsen maintained were located in
the realm of natural law — they would become ‘super-legislators’ (ibid at
81–2).
In sub-Saharan Africa, not unlike in South Africa from 1910, the
constitutional arrangements were a product of the history of colonisation of
14 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

those countries. As the winds of change blew across Africa from 1958
onwards, triggered by the independence of Ghana, their newly adopted
constitutions mirrored those of the departing colonial powers (Isaak I Dore
‘Constitutionalism and the post-colonial state in Africa: A Rawlsian
approach’ (1997) 41 Saint Louis Univ LJ 1301 at 1304). That explains why
Francophone countries were characterised by constitutional councils along
the French model and Anglophone countries adopted parliamentary sover-
eignty as the preferred model. But virtually all sub-Saharan post-colonial
jurisdictions were characterised by absence of a vibrant electorate, of an
exacting civil society and organised labour movement, of a free and
independent press, of a supreme and justiciable constitution and of an
effective model of judicial review (ibid at 1307. See also the contributions in
Robert Dibie (ed) The Politics and Policies of Sub-Saharan Africa (2001) and
John A Wiseman (ed) Democracy and Political Change in Sub-Saharan Africa
(1995)).
Sadly, those ineffectual post-colonial polities displayed undemocratic
tendencies that readily provided fertile ground for open-ended abuse of
executive, fiscal and legislative power — that indeed resulted in the
wholesale denigration of democratic practice, pervasive pillaging of the fiscus
and state corruption. The violation of fundamental human rights became
endemic, matched only by over-dependence on the auctioning of raw
materials and elite self-enrichment at the expense of grassroots economic
development.
I say this not unmindful of the deleterious role of neo-colonialism that
sponsored civil wars in order to mask the plunder of natural resources and
expand foreign markets. There are indeed glimmers of hope for our
continent as we see the steady but slow emergence of democratic constitu-
tionalism and improved economic activity and rural development in a
number of countries on the African continent (Angola (2010), Egypt (2011;
provisional), Guinea (2010), Kenya (2010), Madagascar (2010), Niger
(2010), and South Sudan (2011; transitional) all adopted new constitutions in
the last five years, although not all can be called democracies). The continent
is well on its way to banishing the Afro-pessimism of yesteryear.
Turning inward, it has to be said that our adoption of constitutional
supremacy was similarly influenced by our history. Under apartheid, Parlia-
ment enjoyed supremacy and no constitution or bill of rights provided any
fetter on its legislative powers. Oppressive laws passed by Parliament could,
for the most part, not be challenged in the courts. The apartheid regime was
sustained by lack of accountability and the construct of parliamentary
sovereignty.
Take, for instance, Parliament’s efforts, in pursuit of apartheid policy, to
disenfranchise any voter not classified as white. With a view to disenfranchis-
ing black and coloured voters, Parliament passed in 1951 the Separate
Representation of Voter’s Act 46 of 1951. The Act was passed with a simple
majority, rather than the required two-thirds of both houses of Parliament
required to change the imperial legislation defining the franchise. In Harris &
others v Minister of the Interior & another 1952 (2) SA 428 (A), the Appellate
NOTES 15
Division declared the new legislation invalid, only for Parliament, in turn, to
pass the High Court of Parliament Act 35 of 1952, which allowed Parliament
itself to set aside decisions in which the Appellate Division declared
legislation to be invalid. The Appellate Division subsequently found this
legislation too to be invalid, although following an expansion of the Senate
and Appellate Division with National Party sympathisers, the High Court of
Parliament Act was ultimately passed and a challenge to invalidate failed in
Collins v Minister of the Interior & another 1957 (1) SA 552 (A).
The example serves to show that, at this time when the South African
Parliament enjoyed parliamentary sovereignty, the Appellate Division — and
judiciary more generally — was a weak check on Parliament’s powers.
Parliament was able to make laws without substantive constraints; it
essentially enjoyed a monopoly on power.
It is so that if we were to recall the past, parliamentary sovereignty would
re-install Parliament as the sole arbiter of the rationality and reasonableness of
the measures it passes. The will of the majority in Parliament would be
unrestrained. Socio-economic rights which are now justiciable and are a
significant bulwark in favour of the vulnerable, worker rights which are now
constitutionally entrenched, and other fundamental rights would be enjoyed
at the pleasure of Parliament. But, as we have seen, that is the constitutional
option through which apartheid, Nazism, Fascism and post-colonial Africa
blossomed.
As Karun Chetty observes (Karun D Chetty ‘Politics and constitutional
adjudication: A response to Prof F Venter (PU vir CHO)’ (2003) 6
PER/PELJ 11 at 11–12 (quoting L du Plessis & H Corder Understanding South
Africa’s Transitional Bill of Rights (1994) at 191), under apartheid
‘the judiciary was subordinate and subservient to parliamentary sovereignty; the
law courts were undermined by successive governments that used them ‘‘as
instruments of domination to work injustice, thus creating a crisis of legitimacy
in the legal system as a whole’’ ’.
Chetty further observes (ibid at 12):
‘When recourse is had to the legal tradition of this country, it is generally
accepted that parliamentary sovereignty as applied by the apartheid govern-
ment had a deleterious and stifling effect on the judiciary and judicial activism.
Judicial independence and the growth of judicial activism were compromised
by the ‘‘inarticulate premises’’ of judges who either consciously or uncon-
sciously articulated these premises in support of a minority government
predicated on parliamentary supremacy and sovereignty as well as legal
positivism that was ‘‘invoked as a jurisprudential creed supportive of this
approach’’. Parliamentary sovereignty and its cognate, legal positivism, did not
nurture a culture of judicial activism and legal realism but rather one that
typified a sterile and impotent judiciary.’
It must be emphatically added that the people on the ground and not the
elite were the foremost victims of apartheid. They bore the full burden of
unjust laws. Barring its minority electorate, Parliament was accountable to
itself and nobody else. Its legislative deeds were totally immune to judicial
16 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

review, and its executive and administrative acts were subject only to benign
judicial scrutiny. Under that system crimes against humanity were commit-
ted under the noses of judges and they could do nothing about them even if
they were made aware of them.
Our founding mothers and fathers were well aware of this deleterious
impact of parliamentary sovereignty and made a different choice. They
sought to bring to life a democratic state under the sway of a supreme
constitution that entrenches fundamental protections and a binding norma-
tive scheme.
Of course, there are inherent tensions in our constitutional architecture. I
turn now to look at how best to balance what appears to be two antithetical
constructs within the one constitutional state.

STRIKING THE BALANCE

There can be no question that our founding mothers and fathers made an
unambiguous election to bring into being a constitutional state in which the
Constitution is supreme law. It proclaims in simple language in s 2 that all
‘law or conduct inconsistent with it is invalid, and the obligations imposed by
it must be fulfilled’.
Emerging constitutional skeptics call into question the wisdom of such an
all-pervading and imperious supreme law. As we have seen, they decry
potential constitutional review of ‘all law or conduct’ of the legislature or the
executive by the judiciary, and in that way subvert the will of the majority
they represent. These critics should be reminded that as a reaction to our
hellish apartheid past, the concept and values of the constitutional state and of
an egalitarian society are deeply foundational to the creation of the ‘new
order’ desired by the preamble. The ‘detailed enumeration and description’
in s 36(1) of the Constitution of the criteria that must be met before the
legislature can limit a right entrenched in the Bill of Rights stresses the
‘importance, in our new constitutional state, of reason and justification when
rights are sought to be curtailed’ (see S v Makwanyane & another 1995 (3) SA
391 (CC) para 156).
We have moved from ‘a past noted by much which was arbitrary and
unequal in the operation of the law to a present and a future’ where state
action and indeed private action must be capable of being justified rationally
(ibid). The idea of the constitutional state presupposes an exercise of public
and private power that can be rationally tested against or in terms of the law
(ibid). It also presupposes a right to effective recourse and remedy when
constitutional guarantees are desecrated.
Arbitrariness, by its very nature, is dissonant with these core concepts of
our new constitutional order. Law or conduct that is arbitrary, or unjustifi-
ably limits entrenched rights or in some other manner is inconsistent with the
Constitution is invalid at the behest of the doctrine of constitutional
supremacy (see s 2 of the Constitution).
As though the supremacy clause is not enough, the Constitution asserts its
supremacy in other cardinal provisions. It requires that in the exercise of its
NOTES 17
legislative authority, Parliament ‘must act in accordance with, and within the
limits of, the Constitution’ (s 44(4) of the Constitution). Members of Cabinet
are ‘accountable collectively and individually to Parliament for the exercise
of their powers and the performance of their functions’ (s 92(2) of the
Constitution). They are required to act in accordance with the Constitution
(s 92(3)(a) of the Constitution). Courts too are independent but subject only
to the Constitution and the law and must apply the law. What is more, the
Constitution commands courts to declare any law or conduct inconsistent
with the Constitution invalid to the extent of the inconsistency (s 172(1)(a)
of the Constitution). It better be understood that it is not open to courts to
look away when confronted with unconstitutionality. They are enjoined to
declare the problem and to fashion redress.
Having said all that, it must be conceded that, if there is a danger in
parliamentary sovereignty, there is also a danger in constitutional supremacy.
Contemporary attacks on the Constitutional Court as undermining the
popular will have traction precisely because they are rooted in a legitimate
fear. (For instance, ANC secretary-general Gwede Mantashe recently opined
that the Constitutional Court was thwarting the will of ‘the people’ by
finding legislation passed by Parliament to be unconstitutional. See, for
example, Okyerebea Ampofo-Anti ‘Mantashe’s warped logic’ Sunday
Independent, 31 August 2011 available at www.iol.co.za/sundayindependent/
mantashe-s-warped-logic–1.1128708.) A tension clearly exists between demo-
cratic theory and constitutional supremacy. This is not a dilemma peculiar to
our shores. It is perhaps endemic to all constitutional democracies.
Constitutional law scholars have called this conundrum the counter-
majoritarian dilemma. When the courts, through the exercise of judicial
review, strike down legislation — declaring it, for instance, to be constitu-
tionally invalid — they override the will of the prevailing majority as
expressed by Parliament. In short, the supremacy of the Constitution, and
the way in which this is policed by the courts through judicial review, hands
public officials — namely judges — the power to nullify acts of elected public
officials and thus seems to undermine a fundamental principle of democracy.
Constitutional supremacy and democracy are not, however, necessarily at
irreconcilable loggerheads. A synthesis of the two, indeed, undergirds all
modern constitutional democracies. Without devaluing the institutions
constituent of representative democracy, constitutionalism holds that certain
essential features of the polity — most importantly certain fundamental rights
and the institutional guarantees protecting them — may not be amended or
destroyed by a majority government. The Constitution sets out normative
constraints on majoritarian politics, and their preservation are entrusted to
the judiciary. Judicial review, then, is a necessary mechanism for preserving
the Constitution, for guaranteeing fundamental rights and for enforcing
limits that the Constitution itself imposes on governmental power.
On the one hand, constitutional democracy recognises the principle that
government is based on and legitimated by the will and consent of the
governed or at least the majority of the governed (L W H Ackermann ‘The
18 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

obligations on government and society in our constitutional state to respect

and support independent constitutional structures’ (2000) 3 PER/PELJ 1 at
1). On the other hand, constitutional democracy places a limit on this
principle ‘by making the democratically elected government and the will of
the majority subject to a . . . constitution and the norms embodied in it’
(ibid). As former Justice Ackermann wrote, ‘[i]n a constitutional state, the
politics of governance can never again be a merely pragmatic enterprise
aimed exclusively at achieving the various goals comprising the govern-
ment’s electoral mandate. Governance is now subject to the Constitution and
its values’ (ibid).
The premium placed by many jurisdictions on both democracy and
constitutional supremacy derives from the prioritisation of human rights in
the wake of the Second World War and, in our case, in the wake of apartheid
and colonial repression. Constitutionalism, on this view, reflects contempo-
rary democracies’ commitment to ‘entrenched, self-binding protection of
basic rights and liberties’ in an ‘attempt to secure vulnerable groups,
individuals, beliefs, and ideas vis-à-vis the potential tyranny of political
majorities, especially in times of war, economic crisis, and other incidents of
political mass hysteria’ (Ran Hirschl ‘Preserving hegemony? Assessing the
political origins of the EU Constitution’ (2005) 3 International Journal of
Constitutional Law 269 at 272).
On this view, democracy should not simply be equated with majority rule.
Democracy should no longer be understood as a political community
governed by the principle of parliamentary sovereignty, but rather one
governed by the principle of constitutional supremacy (ibid). Individuals
should enjoy legal protections in the form of a written constitution robust
enough to withstand even change by an elected parliament or, in some
jurisdictions, by a simple majority in such a parliament. Moreover, on this
view, an entrenched constitution effectively enforced through judicial
review is not undemocratic, but rather should be understood as reconcilable
with majority rule (ibid).
This must be so for several reasons. First, it may be correctly posited that
when we adopted the Constitution we entered into an original social
contract. As Hirschl puts it (ibid at 273),
‘members of the polity (or its constituent assembly) provide themselves with
precautions or pre-commitments against their own imperfections or harmful
future desires and bind themselves to their initial agreement on the basic rules
and rights that specify their sovereignty’.
In other words, for us, democracy is more than a mathematical game. It is a
veritable vehicle for the realisation of a cluster of foundational values and
social goals that ought to inform the kind of society that we seek to create.
Even a democratic majority is not enough to rubbish these selected core
values and objects that we have collectively chosen to immunise from
populism.
It must be added that, like all contracts, provisions of the Constitution are
not completely shielded from amendment provided the prescribed support-
NOTES 19
ing majorities are observed. To discard the supremacy of the Constitution
and judicial review a supporting vote of 75 per cent of members of the
national assembly and of six of the nine provinces would be required
(s 74(1)(a) and (b) of the Constitution).
Secondly, some commentators suggest that constitutional supremacy and,
specifically, judicial review by independent constitutional courts, may
actually further democratic ends by facilitating political representation and
participation by minorities that are otherwise excluded from policy-making
processes in majoritarian parliamentary politics (See Jon Elster ‘Forces and
mechanisms in the constitution-making process’ (1995) 45 Duke LJ 364 at
378–80). The obverse of this coin, as we have often heard from domestic
discourse, is that political and other minorities unduly increase their
influence which they otherwise cannot procure from the ballot box.
However, for the judiciary it should matter not whether a minority or
majority raises a constitutional grievance. The task at hand would remain the
same, and that is whether the claim is good.
Thirdly, some theorists, influenced by institutional economics, proffer a
functionalist explanation that constitutional supremacy and judicial review
are an institutional answer to the efficiency problems of collective action,
enforcement and imperfect or asymmetric information (Hirschl op cit at 277.
See also Douglass C North & Barry R Weingast ‘Constitutions and
commitment: The evolution of institutions governing public choice in
seventeenth century England’ (1989) 49 Journal of Economic History 803).
Economic development and investment, on this view, require as prerequi-
sites predictable laws and a legal regime that ensures the protection of private
property rights. The constitutionalisation of rights (and creation of an
independent judiciary to conduct judicial review guided by the constitution)
increases investor confidence and allows for a more consistent, predictable
and efficient enforcement of contracts, thus further encouraging investment.
Fourthly, most modern democracies employ a system of institutional
arrangements that includes the separation of powers, checks and balances and
judicial independence. The South African Constitution, for instance, desig-
nates the judiciary — and in particular the Constitutional Court — as the
prime upholder and enforcer of the Constitution (see s 167(3) of the
Constitution). However, the Constitution goes further and makes provision
for a number of other independent state institutions, the purpose of which is
to ‘strengthen constitutional democracy in the Republic’ (s 181(1) of the
Constitution), namely the Public Protector, the Human Rights Commis-
sion, the Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities, the Commission for
Gender Equality, the Auditor-General and the Electoral Commission.
Furthermore, the Constitution also makes provision for several other
independent bodies that play a role in checking and balancing the exercise of
power by the various arms of government. For instance, with respect to local
government, the Constitution mandates the establishment of an independent
authority for the determination of municipal boundaries (see s 155(3) of the
20 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

Constitution), and provides for a Financial and Fiscal Commission which is

independent (s 220 of the Constitution. See, generally, Ackermann op cit at
3).
As I conclude this part, it must be added that a claim that constitutionalism
amounts only to limiting the powers of government is misleading and
potentially dangerous. (The political philosopher Giovanni Sartori (The
Theory of Democracy Revisited (1987) at 308) has written that constitutionalism
is ‘the technique of retaining the advantages of [the rule of legislators] while
lessening their respective shortcomings’. Constitutionalism ‘adopts rule by
legislators’ but with limitations concerning the method of lawmaking —
constrained by strong procedural requirements — and the range of lawmak-
ing — ‘restricted by a higher law and thereby prevented from tampering with
the fundamental rights affecting the liberty of the citizen’.) A robust and
supreme Constitution arguably can make government stronger and more
stable. Institutional arrangements such as the separation of powers, checks
and balances, and individual civil, political, and justiciable socio-economic
rights make the government more responsible, more consistent, more
predictable, more just, more caring, more responsive and more legitimate in
the eyes of the citizenry.
Ours is an avowedly transformative supreme law that is set to change our
world. To that end we have fashioned the most efficient constitutional
construct to eradicate the evil of the past and to usher in a new dawn and to
anticipate and prevent future abuse of public or private power. We cannot
now regress in order to make monetary political gains.

HAS OUR JURISPRUDENCE STRUCK AN APPROPRIATE

BALANCE BETWEEN MAJORITARIANISM AND CONSTITU-
TIONAL SUPREMACY?
I have come to the end. I must, though, briefly evaluate whether our
jurisprudence has struck an appropriate balance between majoritarianism and
constitutional supremacy. Let me at the outset say that I think that our courts
have made a reasonable effort in striking the appropriate balance, elusive as it
is. Few examples should suffice.
A good starting point would be S v Makwanyane (supra). The Constitu-
tional Court was required to determine the constitutionality of the death
penalty for murder. At the time, the Interim Constitution was applicable.
Chaskalson P accepted that the majority of South Africans believed that the
death penalty ought to be imposed in extreme cases of murder. He
acknowledged that public opinion may hold some degree of relevance but
stated that, in itself, it is no replacement for the duty vested in the judiciary to
interpret the Constitution and to uphold its provisions without fear or favour
(ibid para 38). As he explained, ‘[i]f public opinion were to be decisive there
would be no need for constitutional adjudication’ (ibid). Of course, Makwan-
yane provoked an outcry. But the court was faithful to its judicial obligations
under the supreme law.
NOTES 21
I have been a member of the Constitutional Court for nearly a decade
now. I accept that I am less than dispassionate about the track record of that
court. It has fearlessly pronounced on vital public and private disputes and in
so doing it has crafted a jurisprudence of which we should be proud.
The Constitutional Court has pronounced on the right of access to
housing. It has repeatedly ordered government to find and furnish alternative
accommodation as homeless people are evicted. It has intervened to ensure
that vulnerable people have access to social grants. It has ordered government
to provide anti-retroviral medication. The Constitutional Court has not
hesitated to pronounce on a whole range of procedural and substantive rules
of the criminal justice system. It has often mediated between state organs,
drawing clear lines of authority amongst them. The equality jurisprudence of
our Constitutional Court is a matter of great pride and is world renowned. It
has unhesitatingly banished discrimination and exclusion on virtually every
conceivable ground. On occasion, although perhaps it has had limited direct
opportunities to do so, it has re-fashioned and adapted the common law in
line with our constitutional ethos. When appropriate, the Constitutional
Court has invoked the humane values of ubuntu and has infused them
into our law in ways that are most beneficial. And, as is required by the
Constitution, it has tested many statutes and administrative acts for constitu-
tional compliance. The Constitutional Court has not been slow in taking
a cue from international law, or in taking seriously our international
obligations, and, where appropriate, it has looked to foreign law for
guidance.
It is so that not all court watchers think that we have done a good job all
the time. In respect of socio-economic rights some have made out a
compelling case that the Constitutional Court has been excessively deferen-
tial to the political branches. This deference, it is argued, is apparent from the
court’s refusal to entertain the minimum core approach to enforcement of
socio-economic rights as well as its refusal to exercise supervisory jurisdiction.
My personal take is that socio-economic rights jurisprudence is in many
ways embryonic. It can hardly be said that the Constitutional Court lacks
commitment to protect the most vulnerable amongst us and whose interest
in access to housing, shelter, education and medical care is vital. As evictions
increase and other economic pressures befall the vulnerable in society, the
Constitutional Court has seen an increase in socio-economic rights claims.
About that we are delighted. I have no doubt that opportunities will arise to
help deepen its socio-economic rights jurisprudence in order to come to the
rescue of the most vulnerable amongst us.
Lastly, I do think it is an error to characterise the relationship between the
Constitutional Court and other branches of government as oppositional. Let
me start off by reminding all of us that the government (and so too the ruling
party) has always made it publically known that it respects the rule of law, that
it is committed to upholding the Constitution, that it would give effect to
court orders and that it is a partner with courts to realise the high ambitions of
our Constitution. The government has by and large stood by these commit-
22 (2012) 129 THE SOUTH AFRICAN LAW JOURNAL

ments. In my experience, where court orders have not been implemented it

has been as a result of some or other administrative ineptness and not as a
result of outright recalcitrance.
The function of the Constitutional Court, albeit counter-majoritarian at
times, is ultimately supportive of democracy. It upholds protections that
ensure democratic process and protects both minority and majority rights
under the beneficence of our constitutional arrangement.
Judicial officers who grace our courts are emphatically patriotic and loyal
to the Constitution and the law. We must continue to ensure that the bench
is not only representative of our demographics but also competent and well
cut-out to fulfil the task. That combination, in time, will enhance the
legitimacy and effectiveness of our judiciary.
That judges sometimes find against government or, at other times, for
government tells us nothing about their commitment (or the lack thereof) to
the democratic project of our country. That they get the law wrong
sometimes only reminds us that they are human and explains why we have
appellate safeguards. There is simply no place for wanton attacks on them,
suggesting that they are fostering some arcane or even dishonest agenda. An
average judge approaches his or her work with utmost industry and sincerity,
alive to the grave responsibility he or she bears and the national project to
create a just and better life for all. They all know that they must find the rich
equilibrium our Constitution admirably imposes.