South African Legal Discourse and the Uncontested Constitution

I turn 27 this year. I have just completed my Master of Laws at the University of Pretoria and started my journey toward a doctorate in the same field. As a young constitutional jurist, I am at the beginning of my adventure into the formal discourse on law and jurisprudence. At the time of writing, I had had two peer-reviewed academic journal articles published in leading South African law journals and a third, arguably in the leading law journal, has been accepted for publication. I do, however, already find myself isolated and certainly exasperated about the state of South African legal discourse.

During the course of the previous century, there existed in South African legal discourse an intense debate between the so-called “purists” who wanted English law to be ignored and Roman-Dutch law principles applied wholesale, and “pragmatists” who preferred English law or a mix of English and Roman-Dutch law. Legal journal articles and even textbooks were written by proponents of either side, with the purists acknowledging English law precedent but dismissing it as incorrect. This was a vibrant legal discourse, which of course had its own notable deficiencies, but there was nonetheless real contestation.

This contestation did not only happen in private law, where it was certainly dominant, but also in public law. The purists, for example, did not believe that the principle of stare decisis applied in South Africa. Stare decisis (also known as precedent) is mostly associated with the English common law and means lower courts must adhere to the judgments of higher courts, and as a general rule courts must adhere to their own previous judgments. Instead, the purists thought (incorrectly in my view), that the Roman-Dutch principled applied: The judgments of higher courts did not have to be adhered to — especially not if they got the law wrong, as purists often thought our English-law-applying higher courts did.

Fast-forward to this century.

The Constitution of South Africa was adopted in the 1990s as largely a compromise between three factions: (moderate) black nationalist-socialists, (moderate) Afrikaner conservative-nationalists, and (moderate) liberal-democrats. The extremes of all three (in two cases thankfully and in one case regrettably) did not participate in any meaningful way. (Note that there were many whites in the black nationalist-socialist camp, and some blacks in the Afrikaner conservative-nationalist camp — don’t get hung up on the colours but rather the ideas.) What we got was a compromise, and a pretty good one at that. Whereas the constitutions of many countries declare the State to be socialist upfront, South Africa’s Constitution makes no such mention nor is it even implied. The text is sufficiently clear to indicate it is not socialist, or sufficient ambiguous to allow a contestation over interpretation.

What happened next baffles me to no end.

The moderate Afrikaner conservative-nationalists and moderate liberal-democrats, as well as their extreme wings, being the volkstaatists and classical liberals, gave out a nice, big yawn, hung up their coats, declared themselves retired, and went to bed. The moderate black nationalist-socialists stuck around, and their extreme wing (the Transformationists) rejoined the discourse. They started the important task of interpreting the Constitution, teaching the Constitution, debating the Constitution, and developing the Constitution. They are still at it today, but the moderates have mostly gone. To a great extent, only the Transformationists are left.

Here’s the funny (and exasperating) part: Many of the Afrikaner conservative-nationalists and liberal-democrats have come out of retirement with big frowns on their faces. They’re outraged! The Constitution has failed us, they say. It’s a socialist document! We must abandon it, they say, as if they did not already abandon the process immediately after the Constitution was adopted.

What they miss, of course, is that they thought the process of constitutional developed stopped when the ink was dry on the paper of the Constitution. Hardly. Conservatives and liberals did not stick around for constitutional contestation, interpretation, debate, or development — they ceded that ground entirely to moderate leftists, who have now lost it to radical leftists (yes, Pierre de Vos being one). In many ways, getting a compromised constitution was the easy part, and the discourse that came next was supposed to be the real “constitutional convention” where South Africa’s legal prosperity would be decided. Conservatives and liberals, with preciously few exceptions, simply omitted to participate.

Americans never had this problem. The Constitution of the United States has always been and remains to this day a hotly-contested constitutional text. Conservatives, liberals, progressives, socialists, libertarians all claim to have discovered the perfect constitutional meaning. The discourse is dynamic and engaging.

But whenever I engage with South African (ideological) conservatives and liberals, whether moderate or radical, black or white, I am confronted with one of two responses:

1) The Constitution is socialist and must be abandoned; or

2) The courts have said X, and we must go along with it.

Poppycock.

Where is the conservative and liberal contestation? Why are these people so keen on the Constitution being socialist?

Since I decided to devote some of my intellectual energy to this contestation (disclosure: I am of the “extreme” liberal camp — the classical liberals — and I regard a classical liberal interpretation and developing of the Constitution, or any constitution, to be the most appropriate and lawful manner of constitutional interpretation and development), I have had published the following works:

• The Constitution and the Rule of Law: An Introduction — This is a book I published with the Free Market Foundation. It explains the notion of the “Rule of Law” and the place it (ought to) occupies within South Africa’s constitutional law. It was peer-reviewed by jurists on the Free Market Foundation’s Rule of Law Board of Advisors. The book is available for download here.
• “Property Rights and the Basic Structure of the Constitution: The Case of the Draft Constitution Eighteenth Amendment Bill” — In this paper I advanced the argument that the Constitution might not legally be amendable to allow for expropriation without compensation. This article was published in the Pretoria Student Law Review after a double-blind peer review process. You can read it here.
• “Constitutional Rights and Their Limitations: A Critical Appraisal of the COVID-19 Lockdown in South Africa” — In this paper I argued that the South African government’s response to the COVID-19 lockdown was unconstitutional, and that many of the superior court judgments handed down in the early months of the lockdown were simply incorrect. Instead, the provisions of the Constitution, and legislation, that empowered government to interfere with constitutional rights, had to be interpreted narrowly and restrictively. This article was published in the African Human Rights Law Journal after a double-blind peer review process. You can read it here.

People tell me it’s hopeless to contest the space now, but that is hardly acceptable, especially when I hear it from the very same people who never contested the space when contestation was easier to do so (i.e., before the Constitutional Court developed its backward jurisprudence).

I wasn’t around when the Constitution was adopted. But I am here now. The space is contestable, as testified by the fact that in only two years I have had great success in having heterodox arguments considered in the discourse. The third article that is to be published early this year is on libertarian legal theory — the first such article to ever be published in South African legal scholarship. It has been subject to a double-blind peer review process. Had I listened to conservatives and liberals, I would never have tried to have any of these, particularly the third, published, yet here we are.

It is not because the space is incontestable that the conservatives and liberals have not contested it. There is another reason why they did not, and I do not know what it is yet.

It should be clear that I, for one, won’t sit idly by and watch a constitutional instrument — the very crown of classical liberal achievement — being perverted. The Constitution deserves a second look, and I hope I won’t be the only one giving it that look.