By James Fowkes
This revisionary point of view on South Africa's celebrated Constitutional courtroom attracts on historic and empirical assets along traditional felony research to teach how help from the African nationwide Congress executive and different political actors has underpinned the Court's landmark circumstances, that are frequently applauded too narrowly as purely judicial achievements. general debts see the courtroom as overseer of a negotiated constitutional compromise and because the looked-to mum or dad of that structure opposed to the emerging risk of the ANC. besides the fact that, actually South African successes were equipped on broader and extra admirable constitutional politics to a point no earlier account has defined or stated. The courtroom has replied to this context with a considerably constant yet generally misunderstood trend of deference and intervention. even supposing a piece in development, this institutional self-understanding represents a strong attempt through an rising courtroom, as one constitutionally critical actor between others, to construct a structure.
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Additional info for Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa
The political moment may explain the historical signiﬁcance of the result, but this background is not seen as relevant to the legal question of whether the decision is correct or incorrect, satisfying or unsatisfying. However, that is not the only possible world. Suppose the second, political Makwayane story is not only purporting to tell us what happened – the facts – but that it was the only way that so bold a decision could have happened – the political reality. Suppose it wants to tell us a causal story about how the system actually works and how the result actually came about, such that if we want another Makwanyane, its implication is that we will need the same causal factors, the same conducive political circumstances, or something else that can do the same work.
In Omar’s words: The proposal that a referendum should take place calls into question the very basis of the constitutional state and the notion of the core values of the Constitution, which should be beyond the reach of temporary majorities and the role of the Constitutional Court . . The key to the whole negotiated settlement in South Africa is the move away from parliamentary sovereignty to constitutional supremacy. The constitutional state depends on the establishment and nurturing of an independent, impartial constitutional court.
4. , pp. 785–87, 789–92. , is built around a substantive constitutional argument about what is required by the various pieces of the constitutional mechanism that (are supposed to) govern its application. He sees the Court’s minimalism as a failure to engage properly with this mechanism. Cockrell’s criticism of ‘shallow’ thinly theorized adjudication styles – A. Cockrell, ‘Rainbow Jurisprudence’ (1996) 12 South African Journal on Human Rights 1 – is also bound up in a constitutional claim. g. at 10).