Transformative constitutionalism – Guiding light or empty slogan?

by | Sep 23, 2019 | ACTA, ACTA 2015

Transformative constitutionalism – Guiding light or empty slogan?

Authors Jason Brickhill, Yana van Leeve

ISSN: 1996-2088
Affiliations: Director, Constitutional Litigation Unit, Legal Resources Centre; Honorary Research Associate, University of Cape Town; Member of the Johannesburg Bar; Law Clerk, Constitutional Court of South Africa; Deputy National Coordinator of Equal Education; Attorney of the High Court of South Africa
Source: Acta Juridica, 2015, p. 141 – 171

Abstract

We engage afresh with the notion of transformative constitutionalism as envisaged by Justice Langa. We respond to the charge that it is an empty slogan, which can mean anything and therefore means nothing. It includes at least two components: economic change and change in legal culture. The economic change must include, at the very least, the entitlement to the material conditions necessary for a dignified life, as represented in the Bill of Rights. We then consider progress, since Justice Langa spoke in 2006, against five challenges that he recognised — both at the level of the jurisprudence during that period and political developments within the legal profession and more broadly. Recent developments suggest that, despite progress, we have been diverted from the path of transformative constitutionalism that Justice Langa proposed, both in relation to economic change and legal culture.

The importance of dissent: Two judgments in administrative law

by | Sep 23, 2019 | ACTA, ACTA 2015

The importance of dissent: Two judgments in administrative law

Authors Cora Hoexter

ISSN: 1996-2088
Affiliations: Professor of Law, University of the Witwatersrand, Johannesburg; Advocate of the High Court of South Africa
Source: Acta Juridica, 2015, p. 120 – 140

Abstract

In a Bram Fischer lecture, Chief Justice Pius Langa spoke eloquently about the value and importance of dissent in society and more specifically in the courts. This article draws attention to two judgments in which he himself disagreed with the majority in the context of administrative law. Both judgments are characteristic of Chief Justice Langa and show him at his best, if not at his most popular. Both are remarkably clear-sighted and well-reasoned opinions. Both demonstrate his strong sense of constitutionalism and his profound respect for the design of our democratic Constitution and the institutional roles set out in it. Most tellingly of all, both are based on principle rather than pragmatism, and both eschew expediency. While only one of these judgments has found vindication in the Constitutional Court’s subsequent jurisprudence, both opinions illustrate the qualities of scrupulousness and courage that distinguished the work of Chief Justice Langa; for in both instances he faithfully followed the advice he gave at the end of his Bram Fischer lecture: ‘Tell the truth about the emperor’s robes, no matter the consequences.’

Humility, dissent and community: Exploring Chief Justice Langa’s political and judicial philosophy

by | Sep 23, 2019 | ACTA, ACTA 2015

Humility, dissent and community: Exploring Chief Justice Langa’s political and judicial philosophy

Authors David Bilchitz

ISSN: 1996-2088
Affiliations: Professor of Law, University of Johannesburg; Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: Acta Juridica, 2015, p. 88 – 119

Abstract

This paper explores key features of Justice Langa’s political and judicial philosophy through examining the important value he placed on disagreement and dissent. I begin by considering the controversy which erupted surrounding the comments made by the President of South Africa, Jacob Zuma about the practice of judicial dissent. Underlying these comments are specific assumptions concerning the law, adjudication and, in particular, the nature of a political community. I seek to draw from the writings of Justice Langa concerning dissent and constitutional democracy more generally for responses to these comments, which in turn outline a political community and the judiciary’s role within it that has deep roots in African philosophy. Langa emphasised the need for humility in the face of human fallibility: in light of this, he argued for the importance of respecting and preserving diverse voices in law and society that would be in a continuing conversation over time about how to improve society. I then consider some of the key themes on which Justice Langa felt impelled to write dissenting judgments. These include an emphasis on the history of South Africa, substantive equality, the regulation of private power and the accountability and fairness of public power. This analysis helps us to understand in more detail the kind of polity Langa believed we should be forming. South Africa should be a community that provides a space for diverse individual identities to flourish. Dissent will be a vital part of such a society, being recognised not as a problem but as part of the richness of our diversity which emphasises the need for openness and flexibility in our joint quest — across many conversations — to attain a more just society.

The people, the court and Langa constitutionalism

by | Sep 23, 2019 | ACTA, ACTA 2015

The people, the court and Langa constitutionalism

Authors James Fowkes

ISSN: 1996-2088
Affiliations: Senior Researcher, Institute for International and Comparative Law in Africa, University of Pretoria
Source: Acta Juridica, 2015, p. 75 – 87

Abstract

The extra-curial writings of the late Chief Justice Langa contain several brief but suggestive references to the role of the People in South African constitutionalism — references that go beyond the standard court-centric picture in which the people, having underwritten the Constitution as popular sovereigns, are thereafter confined to supporting roles: bringing cases, complying with orders, supporting the courts to defend their independence. The writings of the late Chief Justice should encourage us to consider the more active and positive role that the people can play as constitutional agents, including as an ongoing source of interpretative activity. This constitutes an important qualifier to the dominant tendency in current writing on South African constitutionalism to see political forces as threats and public opinion as an obstacle. It is also more than an attractive but hypothetical possibility: I argue that it will assist us to see how much of the South African Constitutional Court’s activity since 1994, including all of its most globally-celebrated bold cases, are constructed to a significant extent on pre-existing public foundations built by forces both inside and outside the ANC government — an important rebuttal to prevailing court-centric accounts.

The Langa Court: Its distinctive character and legacy

by | Sep 23, 2019 | ACTA, ACTA 2015

The Langa Court: Its distinctive character and legacy

Authors Theunis Roux

ISSN: 1996-2088
Affiliations: Professor of Law, University of New South Wales, Australia
Source: Acta Juridica, 2015, p. 33 – 74

Abstract

The composition of the South African Constitutional Court under its second Chief Justice, Pius Langa, was virtually identical to that of the post-2004 Chaskalson Court. Despite that, this tribute to the late Chief Justice argues, the two courts were different in several respects. For one, there was a marked increase in the dissent rate on the Langa Court, which may be explained in several ways, but which at the very least suggests that the judges were less concerned than they had previously been about presenting a united front. The Langa Court was also responsible for several doctrinal innovations, including the expansion of the court’s ‘meaningful engagement’ approach to socioeconomic rights. Most of all, however, the Langa Court will be remembered for its deft handling of the Zuma-Thint corruption cases. In case after case, the court successfully resisted being drawn into the political leadership struggle that dominated Langa’s term as Chief Justice. If there is still some uncertainty over the Langa Court’s legacy, this has to do with the judges’ decision to lodge a complaint against Cape High Court Judge John Hlophe for alleged interference in their processes. Pending the full hearing of that complaint, questions remain over the manner in which it was brought and the strategic wisdom of starting a procedure whose impact on the court’s independence was likely to be profound and yet at the same time difficult to control.