L du Plessis1 1 Introductory observations

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Theoretical (dis-) position and strategic Leitmotivs IN CONSTITUTIONAL INTERPRETATION IN SOUTH AFRICA

L Du Plessis1

1 Introductory observations

The constitutional makeover of a dilapidated South African state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship. This essay zooms in on aspects of the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. It is trite that a Constitution stands for the advancement of "the good" and the suppression of "evil". This clichéd truism bears regular reiteration as a reality check, to remind us of how easily benevolent governance can lose its footing on the slippery slopes of thuggish misgovernance and maladministration.

The commitment to substantial constitutionalism saw South Africa efflorescing as a champion for constitutional democracy. The Jacob Zuma regime has, however, in the meantime generously and audaciously contributed to blemishing South Africa's favourable but still vulnerable reputation. Setbacks notwithstanding, the authority of the Constitution and the integrity of constitutionalism have survived so far, while the incursive endeavours of legislatures and the executive more often than not miscarried, owing to bold judicial intercession (when appropriate) and a vigilant civil society.

The advent of constitutional democracy in South Africa has brought about a revolution in the field of the interpretation of enacted law, that is, law made by demonstrable, constitutionally authorised legislatures whose distinctive province is (or at least significantly includes) lawmaking.2 "Enacted law" consists of the supreme Constitution3 and all original (or primary) and delegated (or secondary) legislation in all spheres of government. The consequences of the interpretive revolution have been vast and very visible. Statutory interpretation in South Africa had been deficient long before the advent of constitutional democracy, but the challenge of construing a supreme Constitution, an enacted law-text beyond compare in so many respects, brought matters to a head and set off what is also referred to as a linguistic, interpretive or hermeneutical turn.

Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are up for discussion in the present article, with mainly the Constitutional Court under the loupe. Judges are eminent, authoritative and decidedly visible readers and expositors of the Constitution, but are not its only officially authorised exegetists. However, in the absence of a jurisprudence of interpretation attributable to judicial effort and leadership the interpretive turn would have been destined to come to naught and constitutional democracy to go awry.

The traditional, common-law theories of statutory interpretation – also manifested in and as canons of construction – emanated from and thrived on certain dominant beliefs about the interpretation of law in general and enacted law in particular. These beliefs have been challenged by judges who acknowledged more and more that anyone's interpretation of the law, including their own, draws on a pre-understanding (Vorverständnis) teeming with inarticulate premises. Presuppositions and prejudices are mental agents embedded in this Vorverständnis, engendered by, among other things, someone's life and worldview, which in its turn co-constitutes the human being in a world of cognition and experience which (s)he calls "reality". Negotiating reality compels choice, and choosing prompts positioning in and vis-à-vis reality. In scholarship and in learned professions significantly dependent on theoretical knowledge, the consolidated outcome of crucial choices instantiates someone's theoretical position or his/her philosophy.

Interpretive leitmotivs bear witness to the presence - the effectual being there - of a theoretical position. Leitmotivs recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs, each pertinent to a certain constellation of events in constitutional interpretation, are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism, and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs. (A) is the pervasive reminder that the achievement of a negotiated transition embodied in a constitutional accord depends decisively on both well thought out strategic moves and due process, with (i) also functioning as a constitutionalism of justification. (A) furthermore measures the impact or "degree" of transition in a society on a socio-political and constitutional Richter Scale, and warns of either complacent in- or hectic over-action when reaping the benefits of constitutional democracy. (B) endeavours to make sense of the present in relation to the past, and vice versa, taking the pulse of hope for the future. It is, in other words, the leitmotiv of (the Constitution as) memory and promise.

Note below the schematic rendition of what is discussed in the text. The sequence in which arguments unfold in the discourse below is essentially but not entirely the same as in the scheme.


Directory: journals -> PER -> 2015
2015 -> Law's poverty jm modiri
2015 -> The universal jurisdiction of south african criminal courts and immunities of foreign state officials
2015 -> Book review international Law and Child Soldiers by Gus Waschefort1 ja robinson2
2015 -> Inclusive basic education in south africa: issues in its conceptualisation and implementation
2015 -> "I am not a number! I am a free man!" The employment equity act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid south africa) part 2 am louw1 summary
2015 -> The regulation of market manipulation in australia: a historical comparative perspective
2015 -> The development of international law through the unauthorised conduct of international institutions
2015 -> Sa peté 1 Introduction

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