Abstract

The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation’. Anton Fagan’s argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is based on a mischaracterisation of the Hart-Fuller debate that is both unconvincing and inappropriate. Both he and Stuart Woolman are incorrect to elevate rights over the spirit, purport and objects of the Bill of Rights. The s 39(2) approach to developing the common law does not make the Bill of Rights vanish; rather, it provides a mechanism for bringing horizontal rights to fruition. Finally, s 39(2) is not merely a mechanism for achieving coherence, it is a mechanism for achieving a coherent and just legal system that is superior to Fagan’s preferred mechanism of leaving justice up to the individual moral convictions of judges.