The constitutional, innovative face of South African law | Pierre de Vos
Foreign visitors expecting to see the sort of neoclassical facade that is traditionally said to embody the authority, certainty and stylistic formality of modern law, must find the South African constitutional court building in Johannesburg a rather odd sight.
Erected on the site of a notorious prison where famous figures such as Mahatma Gandhi, Albert Luthuli and Nelson Mandela were once incarcerated, and incorporating aspects of the original prison (including some of its bricks) in its design, the facade of the building announces its purpose in colourful and informal lettering in all 11 of South Africa's official languages.
The foyer is a spacious, light-filled area with slanting columns jutting out at unexpected angles: an architectural metaphor for trees under which African villagers traditionally resolved disputes. The building itself is a metaphor for the constitution adopted in 1996, whose innovative and sometimes daring provisions are interpreted and fleshed out by the 11 judges of the court, always sitting en banc.
The constitution – which abolished the colonial-inspired system of parliamentary supremacy and established a constitutional democracy with a justiciable bill of rights – is both backward-looking and forward-looking.
It seeks to give legitimacy to (and build on) those aspects of the previous legal order not utterly discredited by the apartheid past and hence confirms that the basic principles of the Roman Dutch and English common law (which applied in the apartheid years) would continue to find application within a new democratic system. Thus, the constitution ensures, to some degree at least, the kind of legal continuity and certainty that traditional common law lawyers are often said to value above all else.
However, it is also said to be a transformative document aimed at facilitating a change in the legal culture as well as in the material conditions of the population of South Africa. In judgments by the constitutional court, in the extra-curial writings of former and present constitutional court judges and in the work of progressive legal academics, the virtues of the "transformative" aspects of the constitution are often praised.
Potentially, one of the most "transformative" (and forward-looking) aspects relates to the application of the bill of rights. The constitution enjoins every court, tribunal or forum in South Africa to "promote the spirit, purport and objects of the bill of rights" when "interpreting any legislation, and when developing the common law or the customary law" (the latter being a system of indigenous law under which many South Africans living in rural areas still function).
The constitutional court relied on this provision to liberalise the common law on defamation, making it far more difficult for a plaintiff to sue a newspaper for libel. It did so by invoking the freedom of expression provision in the bill of rights which, argued the court, required less invasive libel laws than those developed by judges as part of the common law.
Similarly, the constitutional court extended the grounds upon which a citizen may sue the government for delictual damages resulting from negligence by the police officers or other officials in the criminal justice system, invoking the right to bodily integrity to justify this move. First tentative steps have also been made to "transform" the traditional common law rules of the law of contract in order to protect the weaker contractual party in any contractual dispute.
Unlike most traditional human rights charters, the bill of rights binds not only the state but, in many cases, also private individuals and institutions. This means that a private citizen would often be able to invoke its provisions against another private citizen, organisation or big corporation.
This provision is based on the assumption that big corporations such as banks and other powerful individuals such as private landlords, wield enormous (and often destructive) power in a modern state. Human rights abuses are therefore not only (or not even primarily) perpetrated by the state and in order to protect the marginalised and vulnerable the bill of rights cannot merely impose duties on the state. Private individuals and institutions often discriminate against individuals, invade their privacy, treat them without dignity or respect or act against their basic economic and social interests and when they do, the individual can approach the courts to have their rights vindicated.
Traditional lawyers have been critical of some of the "transformative" rulings of the constitutional court, arguing that the pure and beautiful logic that underlies the traditional common law rules are being undermined in a mad bout of political correctness and that free enterprise and commerce are being hamstrung by imposing onerous duties on private citizens and companies that limit their freedom to act and to take commercial risks.
However, in a country in which the law used to be deployed as an instrument of racial oppression, the transformative and pro-poor judgments of the constitutional court are arguably helping to rebuild trust in the legal system and promoting the legitimacy of the law – surely a prerequisite for the proper functioning of a society emerging from a period of lawlessness.
-This is the first of three articles about the South African bill of rights by Pierre de Vos.
