By James Fowkes
This revisionary viewpoint on South Africa's celebrated Constitutional court docket attracts on historic and empirical assets along traditional criminal research to teach how aid from the African nationwide Congress govt and different political actors has underpinned the Court's landmark instances, that are usually applauded too narrowly as in basic terms judicial achievements. common money owed see the courtroom as overseer of a negotiated constitutional compromise and because the looked-to mother or father of that structure opposed to the emerging risk of the ANC. besides the fact that, actually South African successes were outfitted on broader and extra admirable constitutional politics to some extent no earlier account has defined or stated. The courtroom has spoke back to this context with a considerably constant yet largely misunderstood development of deference and intervention. even if a piece in development, this institutional self-understanding represents a robust attempt through an rising courtroom, as one constitutionally severe actor between others, to construct a structure.
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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, 17 18 Bickel used the term to refer to the latter situation, in the days before opinion polls became ubiquitous.
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.
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.