Constitutional morality in South Africa: Is it the missing link?

Abstract

The Constitution of South Africa is lauded worldwide for its progressiveness. This paean status notwithstanding, there is an increasing sense that the Constitution’s transformative ideals are gradually slipping out of reach. Inequality persists, while corruption and poverty are increasingly crippling the country. There is no gainsaying that a constitution thrives on its black letter and its spirit. The Constitution of South Africa recognises this truism by expressly providing for certain values, some of which are explicit, while others are implicit. One value that is not explicit in the values laid down in s 1 of the Constitution, and has not featured prominently in the jurisprudence of the superior courts in South Africa, is the doctrine of constitutional morality. The doctrine broadly imposes a moral obligation to comply with the totality of the ethos of the Constitution. The animating question that this article seeks to investigate is whether the doctrine of constitutional morality is missing between the Constitution and the realisation of its lofty transformative ideals. Based on an emergent paradigm of critical constitutionalism in South Africa, the article hypothesises that the ideals of transformation will be attained when those to whom the constitution applies feel the innate moral obligation to comply with the totality of its ethos.

Keywords:

• Constitutional morality
• constitutional values
• Constitution of South Africa, morality
• rule of law

Acknowledgements

I acknowledge the comments by the journal’s anonymous reviewers. They have assisted in improving the article. However, the errors that may remain are mine.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See R Zondo Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State. The Commission was established in terms of the Commission Act 8 of 1947, read with the Regulations of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, Government Gazette 41436 of 9 February 2018.

2 L Sisulu ‘Hi Mzansi, have we seen justice?’ (7 January 2022) IOL; V Shongwe ‘Lindiwe Sisulu should be commended for stirring debate on SA’s Constitution’ (23 January 2022).

3 R Fisher ‘A progressive constitution: South Africa’s Constitution is considered among the most progressive in the world’ Business Media Mags. See further T Roux ‘Transformative constitutionalism and the best interpretation of the South African Constitution: Distinction without a difference?’ (2009) 20 Stellenbosch Law Review 258, where the author observes that ‘the Constitution of the Republic of South Africa, 1996 clearly commits itself to a number of progressive political values. It is therefore not obvious why an interpretive method based on Ronald Dworkin’s notion of putting the Constitution “in its best light” would not produce the progressive legal outcomes’.

4 S Seedorf & S Sibanda ‘Separation of powers’ in Constitutional Law of South Africa 2 ed (2008) 32; K O’Regan ‘Checks and balances: Reflections on the development of the doctrine of separation of powers under the South African Constitution’ (2005) 8 Potchefstroom Electronic Law Journal 1.

5 C Murray ‘The Human Rights Commission et al: What is the role of South Africa’s chapter 9 institutions?’ (2006) 2 Potchefstroom Electronic Law Journal; H ‘Nyane ‘Separation of powers and state institutions supporting democracy: Does South Africa have a “fourth branch” par excellence?’ (2021) 10 Perspectives on Law and Public Administration 188.

6 By liberal rights, I mean classical civil and political rights. They are negative in nature in that they prevent the state from interfering with human liberties. See JM Woods ‘Justiciable social rights as a critique of the liberal paradigm’ (2003) 38 Texas International Law Journal 763.

7 SM Kende ‘The South African Constitutional Court’s embrace of socio-economic rights: A comparative perspective’ (2003) 6 Chapman Law Review 137; C Steinberg ‘Can reasonableness protect the poor? A review of South Africa’s socio-economic rights jurisprudence’ (2006) 123 South African Law Journal 264.

8 M Pieterse ‘What do we mean when we talk about transformative constitutionalism?’ (2005) 20 South African Public Law 155; P Langa ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351.

9 E Mureinik ‘A bridge to where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31.

10 RA Epstein The Classical Liberal Constitution (2014).

11 JM Farinacci-Fernós ‘Post-liberal constitutionalism’ (2018) 54 Tulsa Law Review 1.

12 J Dugard ‘Courts and the poor in South Africa: A critique of systemic judicial failures to advance transformative justice’ (2008) 24 South African Journal on Human Rights 214.

13 S Sibanda ‘Not purpose-made! Transformative constitutionalism, post-independence constitutionalism and the struggle to eradicate poverty’ (2011) 22 Stellenbosch Law Review 482. See also G van Bueren ‘Alleviating poverty through the Constitutional Court’ (1999) 15 South African Journal on Human Rights 52.

14 Dugard (note 12 above) 238.

15 H Kroukamp ‘Corruption in South Africa with particular reference to public sector institutions: The evil of all evils’ (2006) 41 Journal of Public Administration 206; P Sewpersadh & JC Mubangizi ‘Using the law to combat public procurement corruption in South Africa: Lessons from Hong Kong’ (2017) 20 Potchefstroom Electronic Law Journal 1. See also C Ramaphosa Address by President Cyril Ramaphosa on the Response to the State Capture Commission Report, The Union Buildings, Tshwane 23 October 2022. The President said: ‘Corruption is a betrayal of our democracy and an assault on the institutions that we established together to advance the values of our Constitution and the interests of our people’. See further Hugh Glenister v President of the Republic of South Africa 2011(3) SA 347 (CC).

16 J Lanshe ‘Morality and the rule of law in American jurisprudence’ (2009) 11 Rutgers Journal of Law & Religion 1.

17 H Kelsen ‘The pure theory of law and analytical jurisprudence’ (1941) 55 Harvard Law Review 44.

18 See the Preamble and s 1 of the Constitution.

19 MP Olivier, N Smit & E Kalula Social Security: + A Legal Analysis (2003).

20 South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC).

21 Beadica 231 CC v Trustees for the Time Being of the Oregon Trust 2020 (5) SA 247 (CC).

22 R Henrico ‘Re-visiting the rule of law and principle of legality: Judicial nuisance or licence?’ (2014) 4 Journal of South African Law 742.

23 F February ‘State capture: An entirely new type of corruption’ (2019) 25 Institute for Security Studies Southern Africa Report; MB Rapanyane ‘Seizure of state organs, corruption and unaccountability promotion in South Africa: Case study of Jacob Zuma administration’ (2021) 11 African Journal of Development Studies 251.

24 R Zondo Judicial Commission of Inquiry into State Capture Report: Part V Vol. 4, Summary of Recommendations, para [262].

25 T Sithomola ‘Constitutionalism and public administration: Critical considerations for public administrators in South Africa’ (2022) 30 Administratio Publica 21.

26 W Hard ‘The spirit of the Constitution’ (1936) 185 The Annals of the American Academy of Political and Social Science 11.

27 BP Frohnen & GW Carey Constitutional Morality and the Rise of Quasi-law (2017).

28 Ibid 10.

29 BP Frohnen & GW Carey ‘Constitutional morality and the rule of law’ (2010) 26 Journal of Law & Politics 497.

30 Ibid 497.

31 GW Carey The Federalist: Design for a Constitutional Republic (1994).

32 Ibid.

33 W Edmundson ‘State of the art: The duty to obey the law’ (2004) 10 Legal Theory 215.

34 Carey (note 31 above) xii.

35 E Barker Politics of Aristotle (1962) 233.

36 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). For a commentary on the case, see A Fagan ‘Reconsidering Carmichele’ (2008) 125 South African Law Journal 659.

37 Ibid.

38 RN Daniels & J Brickhill ‘The counter-majoritarian difficulty and the South African Constitutional Court’ (2006) 25 Pennsylvania State International Law Review 371; D Brand ‘Judicial deference and democracy in socio-economic rights cases in South Africa’ (2011) 22 Stellenbosch Law Review 614.

39 Trist v Child 21 Wall 441, 450 (US 1874).

40 RH Fallon ‘Legitimacy and the constitution’ (2004) 118 Harvard Law Review 1787; JHH Weiler ‘Does Europe need a constitution? Demos, telos and the German Maastricht decision’ (1995) 1 European Law Journal 219.

41 D Dyzenhaus ‘Dworkin and unjust law’ in WJ Waluchow & S Sciaraffa (eds) The Legacy of Ronald Dworkin (2016) 131.

42 RR Jespersen ‘The jurisprudential problem of apartheid’ (1976) 4 Texas Southern University Law Review 323.

43 WD Guthrie ‘Constitutional morality’ (1912) 196 The North American Review 154.

44 Ibid.

45 The counter-majoritarian dilemma debate is well summarised by M Schulzke & A Carroll ‘Judicial review in context: A response to counter-majoritarian and epistemic critiques’ (2011) 58 Theoria 1. See also D Robertso ‘The counter-majoritarian thesis’ in J Gary & M Schor (eds) Comparative Constitutional Theory (2018) 189; J Waldron ‘Freeman’s defense of judicial review’ (1994) 13 Law and Philosophy 41.

46 K Hoekstra ‘Early modern absolutism and constitutionalism’ (2012) 34 Cardozo Law Review 1079; J Salmon ‘The legacy of Jean Bodin: Absolutism, populism or constitutionalism?’ (1996) 17 History of Political Thought 500.

47 B Holmström The Global Expansion of Judicial Power (1995); R Hirschl ‘The judicialization of politics’ in A Caldeira, RD Kelemen & KE Whittington (eds) The Oxford Handbook of Law and Politics (2008) 119.

48 N Schaks ‘Democracy and (the essential content of) fundamental rights: Marching in line or precarious balancing act?’ (2019) 23 Law, Democracy and Development 299; K Dent & IJ Kroeze ‘Minority rights in the South African context: An exploration of the counter-majoritarian dilemma’ (2015) 26 Stellenbosch Law Review 518.

49 H Corder & C Hoexter ‘“Lawfare” in South Africa and its effects on the judiciary’ (2017) 10 African Journal of Legal Studies 105.

50 ‘Zuma talks on the powers of the judiciary and branches of state’ (1 November 2011) News24.

51 Frohnen & Carey (note 29 above); N Narayan ‘Constitutional morality as tool in interpretation of the Constitution: A critical analysis’ (2021) 1 International Journal of Research in Humanities, Arts and Literature 15.

52 Naz Foundation v Government of NCT of Delhi WP(C) No 7455/2001, Delhi High Court; Decision on 2 July 2009; Navtej Singh Johar v Union of India AIR 2018 SC 4321.

53 Government of NCT of Delhi v Union of India (2018) 8 SCC 501.

54 Ibid para 57.

55 Ibid.

56 M Wesson and M du Plessis ‘Fifteen years on: Central issues relating to the transformation of the South African judiciary’ 2008 24 South African Journal on Human Rights 187; P Sewpersadh & JC Mubangizi ‘Judicial review of administrative and executive decisions: Overreach, activism or pragmatism?’ (2017) 21 Law, Democracy & Development 201; IM Rautenbach ‘Rationality standards of constitutional judicial review and the risk of judicial overreach’ (2018) 1 Journal of South African Law 17.

57 Economic Freedom Fighters v Speaker of the National Assembly 2018 (2) SA 571 (CC).

58 Public Protector State of Capture: A Report of the Public Protector (14 October 2016).

59 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 580 (CC).

60 Economic Freedom Fighters (note 57 above).

61 Ibid para 223.

62 Guthrie (note 43 above).

63 Ibid 155.

64 Ibid.

65 R Dworkin ‘The moral reading of the constitution’ (1996) 43 New York Review of Books 46.

66 Ibid.

67 W Waluchow A Common Law Theory of Judicial Review: The Living Tree (2007) 227.

68 Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC).

69 S v Zuma 1995 (2) SA 642 (CC) para 18.

70 R Dworkin Freedom’s Law: The Moral Reading of the American Constitution (1999).

71 Ibid 10.

72 Ibid 11. Dworkin argues that ‘[t]he moral reading asks them to find the best conception of constitutional moral principles – the best understanding of what equal moral status for men and women really requires […] it does not need them to follow the whisperings of their own consciences or traditions of their own class or sect’.

73 S Wisdom The Judgment of Constitutional Morality (2008) PhD dissertation.

74 Ibid para 21.

75 R Zondo Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State (note 1 above).

76 S v Makwanyane 1995 (3) SA 391 (CC).

77 The Constitutional Court seems to be in the company of Dworkin about the difference between political morality and constitutional morality. According to Dworkin (note 65 above) 47: ‘[P]olitical morality is inherently uncertain and controversial, so any system of government that makes such principles part of its law must decide whose interpretation and understanding will be authoritative’.

78 Makwanyane (note 76 above) para 87.

79 Ibid para 87.

80 Ibid para 89.

81 Ibid para 89. The court based its finding in this regard on Justice Powell’s dissenting opinion in Furman v Georgia [1972] 238 USSC 408, 443:

[T]he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess [the] amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery – not the core – of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.

82 MJ Perry The Political Morality of Liberal Democracy (2010).

83 S v Williams 1995 (3) SA 632 (CC).

84 Weems v United States [1910] USSC 127; Trop v Dulles 356 US 86 (1958).

85 Williams (note 83 above) para 36.

86 Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SA 1 (CC).

87 Freedom of Religion South Africa (ibid) para 62 and 63, where the court observed that:

Parents have over the years enjoyed the right to discipline their children in a variety of ways. One of the instruments for instilling discipline in their children is the administration of moderate and reasonable chastisement. As indicated, its foundation is both religious and cultural in character […] The disadvantage though is that, unlike the constitutional protections available to the child, the right to freedom of religion does not expressly provide for parental entitlement to administer moderate and reasonable chastisement to the child nor does any provision of the Constitution acknowledge the existence of a cultural right to the same effect.

88 Pike v Heart 104.9 FM Case Number 21/2007.

89 Pike v Heart 104.9 FM (ibid) para 8 (original emphasis retained).

90 S v Jordan 2002 (6) SA 642 (CC).

91 Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 (CC).

92 Section 20(1)(a) of the Act.

93 Jordan (note 90 above) para 104.

94 Ibid para 104.

95 Ibid para 105.

96 Section 1 of the Constitution provides:.

‘The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the Constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.’.

97 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 23. The Constitutional Court said: ‘There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socioeconomic rights to all people therefore enables them to enjoy the other rights enshrined in the Bill of Rights. The realisation of these rights is also critical to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential’. See also Carmichele v Minister of Safety and Security 2001 (10) BCLR 995 (CC); A Chaskalson ‘Dignity as a constitutional value: A South African perspective’ (2010) 26 American University International Law Review 1377.

98 Constitution of the Republic of South Africa 200 of 1993 (Interim Constitution). The Interim Constitution was repealed. The relevant part of the postamble reads:.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

99 Makwanyane (note 76 above) para 224.

100 R English ‘Ubuntu: The quest for an indigenous jurisprudence’ (1996) 12 South African Journal on Human Rights 641; N Bohler-Muller ‘Some thoughts on the ubuntu jurisprudence of the Constitutional Court: Note’ (2007) 28 Obiter 590.

101 Beadica (note 21 above).

102 For commentary on the case, see S Thompson ‘Beadica 231 CC: An end to the trilogy?’ (2020) 137 South African Law Journal 641.

103 Beadica (note 21 above) para 72.

104 D Moseneke ‘The fourth Bram Fisher memorial lecture: Transformative adjudication’ (2002) 18 South African Journal on Human Rights 309, 316.

105 I Keevy ‘Ubuntu versus the core values of the South African Constitution’ (2009) 34 Journal for Juridical Science 19; IJ Kroeze ‘Doing things with values II: The case of ubuntu’ (2002) 13 Stellenbosch Law Review 252.

106 Makwanyane (note 76 above) para 307.

107 Heath (note 20 above).

108 Ibid.

109 Ibid para 21.

110 Ibid para 19.

111 Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1. In Roe v Wade [1973] USSC 43, the United States Supreme Court found that there was an invasion of the right to privacy even though such right was not expressly protected in the Constitution.

112 Zuma (note 69 above).

113 Section 1(c) of the Constitution provides that the South Africa is one sovereign democratic state founded on, among others, ‘the supremacy of the Constitution and the rule of law’.

114 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC); Camps Bay Ratepayers and Residents Association v Harrison 2011 (4) SA 42 (CC); Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC); Ayres v Minister of Justice and Correctional Services 2022 (5) BCLR 523 (CC); Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC); Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) para 36.

115 NB Reynolds ‘Constitutionalism and the rule of law’ in G Bryner & N Reynolds (eds) Constitutionalism and Rights (1987) 79.

116 J Raz The Authority of Law: Essays on Law and Morality (2009).

117 L Fuller The Morality of Law (1964); see also C Murphy ‘Lon Fuller and the moral value of the rule of law’ (2005) 24 Law and Philosophy 239.

118 J Dugard ‘The judicial process, positivism and civil liberty’ (1971) 88 South African Law Journal 181.

119 Baloro v University of Bophuthatswana 1995 (4) SA 197 (B); E Mureinik ‘A bridge to where? Introducing the interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31; D Dyzenhaus ‘The pasts and future of the rule of law in South Africa’ (2007) 124 South African Law Journal 734.

120 Nyathi v Member of the Executive Council for the Department of Health, Gauteng 2008 (9) BCLR 865 (CC).

121 Ibid para 80.

122 Nyathi (note 120 above) para 80 (original emphasis retained).

123 Economic Freedom Fighters (note 59 above).

124 Ibid para 54.

125 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC).

126 Ibid para 56.

127 Ibid para 58.

128 Zondo (note 1 above).

129 Makwanyane (note 76 above).

130 Williams (note 83 above).

131 G Carpenter ‘Public opinion, the judiciary and legitimacy’ (1996) 1 SA Public Law 110; Max du Plessis ‘Between apology and utopia: The Constitutional Court and public opinion’ (2002) 18 South African Journal on Human Rights 1.

132 Makwanyane (note 76 above); Jordan (note 90 above).

133 Carmichele v Minister of Safety and Security (note 36 above); S v Mhlungu 1995 (3) SA 867 (CC); Grootboom (note 97 above).

Additional information

Notes on contributors

Hoolo ‘Nyane

Hoolo ‘Nyane, associate professor and head of department of public and environmental law, University of Limpopo, Polokwane, South Africa