Pretoria University Law Press (PULP)

PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria

Making the road by walking: The evolution of the South African Constitution
by Narnia Bohler-Muller, Michael Cosser & Gary Pienaar
ISBN: 978-1-920538-75-0
Pages: 227
Print version: Available
Electronic version: Free PDF available

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About the publication

This engaging, readable law book is timely for many reasons. In this period of political turmoil, amidst allegations of bare-faced large-scale grabbing by greedy politicians and their confederates, the principles and mechanisms of our Constitution become more acutely important than ever. Over the last quarter-century or so, through our courts' judgments, delivered without fear or favour, the Constitution has begun to breathe life. Much challenge and much peril and much work still lie ahead. But some of the vibrancy and influence the Constitution has already attained may be traced to the voices and personalities of those behind the judgments: the judges who write them. This book looks at the character and thinking of some of the judges who have helped to start the process of making our Constitution real. The text reminds us that behind the structures of state and the mechanisms of power stand human beings, in all their frailty, but also in all their courage and determination to make our country better for the poorest in it. In other words, judges who take seriously the promise of constitutional governance and of social justice under law.

Justice Edwin Cameron, Constitutional Court of South Africa

Table of Contents

  1. Foreword
    The constitutionalist concept of Justice L Ackermann: Evolution by revolution
    1 Introduction
    1.1 Making the road by walking
    1.2 The composition of the first Bench
    1.3 The evolution of the South African Constitution
    1.4 Social justice
    1.5 Constitutional interpretation and amendment
    1.6 The limits of constitutional transformation
    1.7 Do we really need the Constitution?
    2 Structure of the book
    2.1 Lourens Ackermann
    2.2 Richard Goldstone
    2.3 Johann Kriegler
    2.4 Yvonne Mokgoro
    2.5 Kate O’Regan
    2.6 Albie Sachs
    2.7 Thembile Skweyiya
    2.8 Zak Yacoob
    3 Contributors to this volume
  2. The constitutionalist concept of Justice L Ackermann: Evolution by revolution
    1 Introduction
    2 The human rights rEvolution
    3 The substantive legal rEvolution
    4 The comparative rEvolution
    5 Conclusion
  3. A mensch on the Bench: The place of the sacred in the secular jurisprudence of Justice Richard Goldstone
    1 Introduction
    2 Richard Goldstone: A selective biography
    3 Justice Goldstone in the eyes of the world
    3.1 Apartheid-era judge
    3.2 International judge
    3.3 Constitutional Court judge
    4 Justice Goldstone’s view of his life and work
    4.1 Apartheid-era judge
    4.2 International judge
    4.3 Constitutional Court judge
    5 Social justice and Judaism
    6 Conclusion
  4. The advocate, peacemaker, judge and activist: A chronicle on the contributions of Justice Johann Kriegler to South African constitutional jurisprudence
    1 Introduction
    2 The advocate, peacemaker, judge and activist: A select biography
    3 What others have said about Justice Kriegler
    4 In Justice Kriegler’s own words
    5 Select themes
    5.1 The Constitution as a transformative document
    5.2 Role of the courts in the transformation process
    5.3 Demographic transformation and the judiciary
    5.4 Separation of powers
    5.5 Independence and accountability of the judiciary
    5.6 Equality and dignity
    5.7 Horizontal application of the Bill of Rights
    5.8 Reconciliation of criminal procedure with the Bill of Rights
    5.9 Use of comparative international and regional norms, jurisprudence and practice
    6 Reflections on Kriegler’s interpretive approach and contribution to our understanding of the Constitution
    7 Conclusion
  5. Breaking the chains of discrimination and forging new bonds: The extraordinary journey of Justice Yvonne Mokgoro
    1 Introduction
    2 Yvonne Mokgoro’s background and context: From childhood to judge
    2.1 Activism
    2.2 Impact of apartheid on Justice Mokgoro’s life
    2.3 Customary law and gender
    3 Ubuntu on the Bench
    3.1 Makwanyane: Not in my name
    3.2 Beyond Makwanyane: A narrative about reconciling care and justice
    3.3 Some critical and cautionary notes
    3.4 A legacy in the making: Mind the gap
    4 Life after the Bench
    4.1 A public voice in defence of the Constitution and its values
    5 Concluding observations about the dignity of ubuntu
  6. Justice O’Regan: Finding the aristotelian golden ‘middle way’
    1 Introduction
    2 A select biography
    3 The 3Rs of the Constitution
    3.1 Respect, responsibility and rights
    3.2 Capacity and capabilities
    3.3 Responsibility, reasonableness and deference
    3.4 Responsibility and pragmatism
    4 A ‘progressive jurisprudence’ of SERs and their ‘progressive realisation’
    4.1 Deprivation disables democracy
    4.2 Principle, prudence, patience and pragmatism
    4.3 Power and principles
    5 Text and context
    6 Separation of powers
    6.1 The first constraint: Legality and the rule of law
    6.2 The second constraint: Rationality or the ‘some rhyme or reason’ rule
    6.3 The third constraint: The Bill of Rights
    7 Conclusion
  7. Infusing the Constitution with ‘an ethic of care’: The humane jurisprudence of Justice Albie Sachs
    1 Introduction
    2 Background: The stories of Justice Albie Sachs
    3 Understanding Sachs’s contribution to the evolution of the Constitution
    3.1 In the beginning: Humanity and incertitude
    3.2 The value of an individual life
    3.3 Irene Grootboom and her struggle for shelter
    4 Discussion and themes
    4.1 Storytelling, ubuntu and care
    4.2 Reconciliation and the restoration of balance
    5 Persistent love of the Constitution
    6 Conclusion
  8. The functional constitutionalism of Justice Thembile Skweyiya
    1 Introduction
    2 Who was Justice Thembile Skweyiya?
    3 Skweyiya’s jurisprudence and its thematic considerations
    3.1 Child-related judgments illustrating Skweyiya’s constitutional commitment
    4 The influence of African law on Skweyiya’s legal sensibilities
    5 Conclusion
  9. Transformation as constitutional imperative: Justice Zak Yacoob and the making of a civil practice
    1 Introduction
    2 The biographical beginnings of Justice Zak Yacoob
    3 The idea of the law and becoming constitutional
    4 Views on the Constitution
    5 Working in the Court and a humane approach
    5.1 Subjectivity
    5.2 Corruption, Nkandla and patriotic criticism
    5.3 Strengths and failures of the Constitutional Court
    5.4 Constitutional endings, civil society and retirement
    6 Beyond a distributive paradigm: Yacoob’s jurisprudence and the limits of social justice
    7 Conclusions

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