Remnants of Apartheid Common Law Justice

View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Dayton University of Dayton eCommons School of Law Faculty Publications School of Law 4-7-2017 Remnants of Apartheid Common Law Justice: The Primacy of the Spirit, Purport and Objects of the Bills of Rights for Developing the Common Law and Bringing Horizontal Rights to Fruition Christopher J. Roederer University of Dayton, [email protected] Follow this and additional works at: https://ecommons.udayton.edu/law_fac_pub Part of the Law Commons eCommons Citation Roederer, Christopher J., "Remnants of Apartheid Common Law Justice: The rP imacy of the Spirit, Purport and Objects of the Bills of Rights for Developing the Common Law and Bringing Horizontal Rights to Fruition" (2017). School of Law Faculty Publications. 42. https://ecommons.udayton.edu/law_fac_pub/42 This Article is brought to you for free and open access by the School of Law at eCommons. It has been accepted for inclusion in School of Law Faculty Publications by an authorized administrator of eCommons. For more information, please contact [email protected], [email protected]. Page 1 of 34 South African Journal on Human Rights 1 2 3 REMNANTS OF APARTHEID COMMON LAW JUSTICE: THE PRIMACY OF THE SPIRIT, 4 5 PURPORT AND OBJECTS OF THE BILLS OF RIGHTS FOR DEVELOPING THE 6 COMMON LAW AND BRINGING HORIZONTAL RIGHTS TO FRUITION 7 8 9 The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law 10 11 deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to 12 develop it by removing that deviation.’ Professor Anton Fagan’s argument that this is false is 13 14 flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, 15 Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary 16 17 reason for developing the common law that can be trumped by the individual moral views of 18 judges, is also flawed. It is based on a mischaracterization of the Hart-Fuller debate that is both 19 20 unconvincing and inappropriate. Both he and Professor Stuwart Woolman are incorrect to 21 elevate rights over the spirit, purport and objects of the Bill of Rights. The s 39(2) approach to 22 23 developing the common law does not make the Bill of Rights vanish; rather, it provides a 24 mechanism for bringing horizontal rights to fruition. Finally, s 39(2) is not merely a mechanism 25 26 for achieving coherence, it is a mechanism for achieving a coherent and just legal system that is 27 superior to Fagan’s preferred mechanism of leaving justice up to the individual moral convictions 28 29 of judges. 30 31 32 I INTRODUCTION 33 34 The Constitutional Court in Carmichele held that: 35 36 37 ‘[Where] the common law deviates from the spirit, purport and objects of the Bill of Rights 38 1 39 the courts have an obligation to develop it by removing that deviation.’ 40 41 Professor Fagan in his article, ‘The Secondary Role of the Spirit, Purport and Objects of the 42 43 Bill of Rights in the Common Law’s Development’ makes the bold yet misguided claim that 44 2 45 “[n]otwithstanding its endorsement by the Constitutional Court, [the proposition] is false.” 46 Fagan claims that the proposition is false because he believes that the Constitution only 47 48 provides three possible reasons for developing the Common Law, namely, rights in the Bill of 49 3 50 Rights, justice, and common law rights. He further argues, as the title of his article suggests, 51 that the spirit, purport and objects of the Bill of Rights cannot be a primary reason for 52 53 54 1 Carmichele v. Minister of Safety and Security & another (Center for applied Legal Studies Intervening) 2001 55 (4) SA 938 (CC) at 954A. 56 2 Anton Fagan ‘The Secondary Role of the Spirit, Purport and Objects of the Bill of Rights in the Common 57 Law’s Development’ (2010) 127 SALJ 611. 58 3 Ibid. 59 60 1 South African Journal on Human Rights Page 2 of 34 1 2 3 developing the common law, but that they play a secondary role as a tie breaker when these 4 4 5 other reasons are indeterminate. Professor Woolman, in his article ‘The Amazing, Vanishing 6 Bill of Rights’, similarly views the section 39(2) mechanism of developing the common law 7 8 so as to promote the spirit, purport and objects of the Bill of Rights as a poor second to the 9 10 more direct mechanism of developing the common law based on the rights in the Bill of 11 Rights.5 Contrary to Woolman’s view, however, the Bill of Rights is not somehow amazingly 12 13 vanishing as a result of the courts’ resort to the spirit, purport and objects of the Bill of 14 15 Rights. In order for the rights in the Bill of Rights to vanish, they would first need to appear, 16 and although the Bill of Rights contains the seeds of a number of horizontally applicable 17 18 rights, few are actually fully developed rights.6 As will be demonstrated below, those rights 19 20 have a better chance of coming to fruition through the s 39(2) process of developing the 21 common law through the spirit, purport and objects of the Bill of Rights than through the s 22 23 8(2)-(3) processes of trying to determine if given rights in the Bill of Rights are applicable to 24 7 25 natural or juristic persons. This article refutes Fagan’s arguments, and in the process, refutes 26 Professor Woolman’s position. 27 28 Although Fagan makes a valiant and sometimes logically sound argument for his 29 30 assertion, he is wrong in a number of respects and his argument suffers from several fatal 31 flaws. Fagan’s article contains a number of misquotes and misrepresentations. There are 32 33 approximately ten serious flaws in his argument, among numerous other flaws: 34 35 36 1) Fagan, incorrectly asserts that the Constitutional Court’s proposition is false as a 37 simple matter of Constitutional authority; 38 39 40 4 41 Ibid at 611-612. 5 Stewart Woolman ‘The Amazing, Vanishing Bill of Rights’ (2007) 124 SALJ 762-794. 42 6 The original working title of this article was ‘Looking for Rights in All the Wrong Places: Why the Bill of 43 Rights is not Vanishing and Why the Spirit, Purport and Objects of the Bill of Rights are both a Primary Reason 44 for Developing the Common Law and the Standard that must be Followed by Every Court, Tribunal and Forum 45 When Developing the Common Law’. 46 7 There have been two other refutations of Fagan’s work on this issue that should be mentioned, one reply by 47 Dennis Davis (Dennis M Davis ‘How many positivist legal philosophers can be made to dance on the head of a 48 pin? A reply to Professor Fagan’ (2012) SALJ 59 (Reply)) and an article by Drucilla Cornell and Nick Freidman, 49 in the Malawi Law Journal (Drucilla Cornell & Nick Friedman ‘In Defense of the Constitutional Court: Human 50 Rights and the South African Common Law’ (2001-2012) 5 Malawi LJ 1). Both of these pieces are excellent, 51 but Davis’s is a more narrowly focused refutation of Fagan’s positivist approach and Cornell and Freidman’s 52 article spends most of its ink refuting Fagan’s argument in his article, 'The Confusions of K' (2009) 126 SALJ 53 154. Neither of these works address the misquotes and misrepresentations addressed in this article that were made by Professor Fagan in his article. Fagan has written a rejoinder to Davis’s article Anton Fagan ‘A Straw 54 Man, Three Red Herrings, and a Closet Rule-Worshipper – A Rejoinder to Davis JP’ (2012) SALJ 788 55 (Rejoinder). Nothing in his rejoinder, however, corrects the errors in his original argument. Fagan does charge 56 Davis with a failure to feel constrained by the ordinary meaning of the text. Ibid at 789. Professor Fagan could 57 have benefited from a bit more fidelity to the text himself in his article. Davis has replied again in ‘The 58 Importance of Reading – A Rebutter to the Jurisprudence of Anton Fagan’ (2013) SALJ 52 (Rebutter). 59 60 2 Page 3 of 34 South African Journal on Human Rights 1 2 3 2) He misquotes, misunderstands, and misrepresents the Constitutional Court’s argument 4 for the duty it has imposed on the judiciary; 5 6 3) He mischaracterizes the famous Hart-Fuller debate regarding ‘no vehicles in the park’ 7 8 and the issue of ‘penumbral’ and ‘core meanings’ by misrepresenting the hypothetical 9 example used in that debate to better suit his rhetorical purposes; 10 11 4) The use of this example from the Hart-Fuller debate not only fails to convince, it is 12 13 off-point and misleading as it involved the discretion of park officials in ‘developing’ 14 enacted law as opposed to judges developing the common law; 15 16 5) His further examples of fireworks in the park and doctors providing emergency 17 18 medical assistance are unsuccessful because they are not ‘clearly’ outside of the 19 penumbral meaning of the respective provisions; 20 21 6) His argument that the Constitution limits the power of the courts to develop the 22 23 common law to developments that are based on the three mentioned reasons is based 24 on an implausible and strained reading of the text of the Constitution; 25 26 7) Although for different reasons, both Professor Fagan and Professor Woolman are 27 28 wrong to privilege ‘rights’ in the Bill of Rights over the spirit, purport and objects of 29 the Bill of Rights; 30 31 8) Fagan’s argument that the spirit, purport and objects of the Bill of Rights cannot be 32 33 both a primary reason for the development of the common law and an obligation for 34 how it is to be developed is not logically sound; 35 36

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