Theoretical (dis-) position and strategic leitmotivs in constitutional interpretation in South Africa

Abstract

This essay takes a look at the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. The advent of constitutional democracy in South Africa went hand in hand with an about-turn in the interpretation of enacted law-texts (including the Constitution) and a critical interrogation of certain dominant beliefs about the interpretation of law in general and enacted law in particular. Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are discussed, concentrating mainly on the jurisprudence of the Constitutional Court. Central to the author's approach is an acknowledgement of the decisive actuality of an interpreter's theoretical position becoming visible through (interpretive) leitmotivs. These recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs pertinent to certain constellations of events in constitutional interpretation are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism; and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs. The author concludes that, although scouting out and engaging with leitmotivs call for profound reading and for text analysis of a sort with which "logical" jurists are not always too comfortable, the said endeavours have the potential to be exceptionally rewarding.