THEORETICAL ( DIS-) POSITION AND STRATEGIC LEITMOTIVS IN CONSTITUTIONAL INTERPRETATION IN SOUTH AFRICA

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.


THEORETICAL (DIS-) POSITION AND STRATEGIC LEITMOTIVS IN CONSTITUTIONAL INTERPRETATION IN SOUTH AFRICA L Du Plessis 1 Introductory observations
The constitutional makeover of a dilapidated South African state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship.This essay zooms in on aspects of the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution.It is trite that a Constitution stands for the advancement of "the good" and the suppression of "evil".This clichéd truism bears regular reiteration as a reality check, to remind us of how easily benevolent governance can lose its footing on the slippery slopes of thuggish misgovernance and maladministration.
The commitment to substantial constitutionalism saw South Africa efflorescing as a champion for constitutional democracy.The Jacob Zuma regime has, however, in the meantime generously and audaciously contributed to blemishing South Africa's favourable but still vulnerable reputation.Setbacks notwithstanding, the authority of the Constitution and the integrity of constitutionalism have survived so far, while the incursive endeavours of legislatures and the executive more often than not miscarried, owing to bold judicial intercession (when appropriate) and a vigilant civil society.
The advent of constitutional democracy in South Africa has brought about a revolution in the field of the interpretation of enacted law, that is, law made by demonstrable, constitutionally authorised legislatures whose distinctive province is (or at least significantly includes) lawmaking.1 "Enacted law" consists of the supreme Constitution2 and all original (or primary) and delegated (or secondary) legislation in all spheres of government.The consequences of the interpretive  Lourens du Plessis.Hons BA (Stellenbosch), B Jur et Comm, LLB, B Phil, LLD (PU vir CHO).Extraordinary Professor of Law, North-West University (Potchefstroom).E-mail: lourens.duplessis@nwu.ac.za. 1 Organs of state whose distinctive province significantly includes lawmaking will be organs of the executive who are competent delegated lawmakers.
revolution have been vast and very visible.Statutory interpretation in South Africa had been deficient long before the advent of constitutional democracy, but the challenge of construing a supreme Constitution, an enacted law-text beyond compare in so many respects, brought matters to a head and set off what is also referred to as a linguistic, interpretive or hermeneutical turn.
Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are up for discussion in the present article, with mainly the Constitutional Court under the loupe.Judges are eminent, authoritative and decidedly visible readers and expositors of the Constitution, but are not its only officially authorised exegetists.However, in the absence of a jurisprudence of interpretation attributable to judicial effort and leadership the interpretive turn would have been destined to come to naught and constitutional democracy to go awry.
The traditional, common-law theories of statutory interpretation -also manifested in and as canons of construction -emanated from and thrived on certain dominant beliefs about the interpretation of law in general and enacted law in particular.
These beliefs have been challenged by judges who acknowledged more and more that anyone's interpretation of the law, including their own, draws on a preunderstanding (Vorverständnis) teeming with inarticulate premises.Presuppositions and prejudices are mental agents embedded in this Vorverständnis, engendered by, among other things, someone's life and worldview, which in its turn co-constitutes the human being in a world of cognition and experience which (s)he calls "reality".
Negotiating reality compels choice, and choosing prompts positioning in and vis-à-vis reality.In scholarship and in learned professions significantly dependent on theoretical knowledge, the consolidated outcome of crucial choices instantiates someone's theoretical position or his/her philosophy.
Interpretive leitmotivs bear witness to the presence -the effectual being there -of a theoretical position.Leitmotivs recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law.Four leitmotivs, each pertinent to a certain constellation of events in constitutional interpretation, are

Common-law theories of interpretation
Juristic use of the term "theory" is notoriously loose.Sometimes it is a synonym for "rule" or "precept", for example, the "expedition theory" in the law of contract. 3A theory is, in part, "explanatory". 4 The consensus theory in the law of contract, for instance, explains that a contract stems from a concursus animorum of the parties involved. 5A theory, as an idea accounting for a situation or substantiating a course of action, is justificatory as well, advancing the principles on which the practice of an activity is based. 6The consensus theory in the law of contract, for instance, justifies a finding that in the absence of a concursus animorum, a contract has not been concluded.The conventional theories of statutory interpretation, sometimes also referred to as "interpretative approaches", are both explanatory and justificatory in this way. 7The most prominent, traditional common-law theories of statutory interpretation are: (i) Literalism: maintaining that the meaning of an enacted provision can and must be deduced primarily from the language in which it is couched, 8 thereby placing clear language on the same footing as plain or ordinary language; 9 in other words, language as a native speaker would use and understand it; 10 (ii) Intentionalism: claiming that to discern and give effect to the intention of the legislature is the paramount rule of statutory interpretation; 11 (iii) Literalism-cum-intentionalism: traditionally the dominant theory of statutory interpretation in South Africa, 12 premised on a combination of literalist and intentionalist assumptions; (iv) Contextualism: asserting that meaning is vitally dependent on context: only by reading an enacted provision and its words and language in context can its meaning(s) be determined; 13 (v) Purposivism: looking at a particular legislative provision as part of a more encompassing instrument, and contending that meaning is to be attributed to such a provision in the light of the purpose(s) or object(s) it has been designed to achieve; 14 and (vi) Objectivism: which is meant as an antidote to the subjectivism of intentionalism; it maintains that once a law has been enacted the legislature has had its say and the text assumes an existence of its own 15 and must then be concretised and brought to completion, in an actual situation, by a court acting as the legislature's delegate.
None of these theories by itself can, however, adequately explain what interpretation -let alone constitutionally induced shifts in modes of and approaches to interpretation -really entails.

Theoretical multi-functionality
Frank Michelman 16 identifies literalism, intentionalism, purposivism instrumentalism and moralism as theories of constitutional interpretation in the USA context.These theories derive from approaches to interpretation akin to our own common-law theories of statutory interpretation.Michelman says of these theories that they constitute a "kind of standard list of interpretative approaches or methods available to constitution adjudicators -from which, it's sometimes imagined, a judge chooses one (or perhaps just falls into one)". 17He is adamant that the items on the said list "legislative intent" couched in (allegedly) "clear and unambiguous language".The "intention of the legislature", in all its possible significations, will always be subject (and second) to the Constitution, and not only when a statute is (allegedly) inconsistent with a provision or provisions of the Constitution.25The interpretive strategy helping to give specific effect to this (new) canon of statutory interpretation in section 39(2) is known as reading in conformity with the Constitution (Verfassungskonforme Auslegung).

The notion of a "theoretical position" in law
A theory is explanatory and justificatory at the same time.A legal interpreter's theory of interpretation causes him or her to relate, intentionally or intuitively, issues of interpretation to broader questions regarding, amongst others, the role and function of language in law and the possibility of justice through the reading and realisation of written law.It also situates interpretive endeavours in a legal and constitutional tradition within prevailing understandings of matters of interpretive consequence, such as the nature and the division of power (reflected in, for example, trias politica) and the role appropriate to authorised (judicial and other) interpreters of the law in the system.An approach to interpretation is premised on and shaped by theoretical assumptions about the crucial matters just mentioned and by numerous other matters too.In constitutional interpretation these matters may, for instance, manifest in what Michelman calls "an emergent national sense of justice to which ... interpretations ... recursively" contribute. 26en the notion "theory of constitutional interpretation" is thought of as a position based on assumptions about the crucial matters mentioned above, it becomes clear why one-word depictions and one-sentence definitions -all parading as "theories" of The court in Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd.In re: Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) para 21 motivated the overriding significance of the canon of statutory interpretation derived from s 39(2) as follows: "All law-making authority must be exercised in accordance with the Constitution.The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens and includes all in the process of governance.As such, the process of interpreting the Constitution must recognize the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights.This spirit of transition and transformation characterizes the constitutional enterprise as a whole." or "approaches" to constitutional interpretation -are by themselves inadequate explanations of and justifications for "constitutional interpretation" in its complexity.
Literalism, intentionalism and contextualism, for instance, cannot be theories of constitutional (or statutory) interpretation, but are at most elements of theoretical positions.
A theoretical position, pertinent to constitutional interpretation, is determined by the assumptions referred to above and it is a constitutional interpreter's theoretical position, rather than any specific conventional approach to (or common-law theory of) interpretation on which (s)he may rely that co-determines interpretive outcome. 27To make an assumption involves making a choice.Theoretical positions on constitutional interpretation coming from choices thus made therefore order and rank (or hierarchize) interpretive preferences. 28theoretical position, which is a theoretical disposition at the same time, is not in its entirety rationally or even consciously decided on."Jurists in practice" (including judicial officers), especially, do not habitually devote time to reflect specifically on (and explain or justify) their theoretical positions, which mostly become discernible in the arguments they rely on to justify specific interpretive outcomes. 29A theoretical position may nonetheless be reflected on, contested, defended, explained and (also consciously) changed.It may also be shared with others although, due to the uniqueness of each individual, no two theoretical positions can probably be identical in every detail.A theoretical position is constituted by multifarious interacting factors and forces, some of which result from conscious, reasoned choice, while others derive from intuitive perception.Covert and subconsciously held (theoretical) assumptions, precisely because of an interpreter's uncritical unawareness of them, often have a more decisive impact on interpretive outcome than overt and consciously reasoned assumptions. 30A nation's judiciary cannot assume a theoretical position en bloc on issues of constitutional (or statutory) interpretation.The theoretical position of an individual judge may, as a matter of fact, vary from case to case depending on the measure of latitude that the law and the canons of construction allow for deciding the specific issues in a case. 31However, it is possible that, within a given jurisdiction or tradition, a theoretical position of a certain kind may dominate how interpreters of a constitution (and of statutes and other law too), especially the judges and legal practitioners, approach their task.An overriding theoretical position may in time even become a template for additional (or auxiliary) positions on and approaches to interpretation.32 Literalism-cum-intentionalism has long held a dominant position in statutory interpretation in South Africa, 33 with contextualism and purposivism mostly in auxiliary or secondary roles.The belief, growing in popularity, that since the advent of constitutional democracy in South Africa purposivism has been replacing literalism-cum-intentionalism as the template approach -definitely in constitutional interpretation, but increasingly so in statutory interpretation too -is not unproblematic. 34It is a misapprehension that reliance on a single preferred approach to (constitutional or statutory) interpretation can eventually "make all the difference".Since 1994 it has mainly been "an emergent [new] national sense of justice" (à la Michelman) 35 -and not any particular interpretive approach -that has navigated constitutional and statutory interpretation in South Africa along previously unexplored pathways.

Interpretive leitmotivs and the law: some illustrations
The complexity of a theoretical position precludes a full and reliable depiction of it at first glance, and is most often recognised quite piecemeal, as it were, by effects or consequences in which it manifests (aspects of) itself, and not as a holistic picture of some sort.

Memorial and monumental constitutionalism
A constitution both narrates and authors a nation's history -so memorial constitutionalism maintains.Two constitutions since 1994 have accordingly archived as well as effected far-reaching change in South Africa.A constitution memorialises the past, but is also a monument triumphantly shedding the shackles of what went before, and setting a nation free to take thought (and responsibility) for its future.
Memorial constitutionalism is a constitutionalism of memory in a South Africa (still) coming to terms with its notorious past, but eventually also a constitutionalism of promise along the way of (still) getting to grips with the future.
Memorial constitutionalism, as interpretive leitmotiv, calls attention to and affirms the power of the unspectacular, non-monumental Constitution as vital (co-)determinant of constitutional democracy.The memorial Constitution coexists with the monumental Constitution, 38 kindling the hope that duly and simultaneously acknowledged, the coexistence of the Constitution's monumental and memorial modes of being -which, at a glance, may seem to be at odds -will be mutually Monuments and memorials have memory in common, but in distinct ways: a monument celebrates; a memorial commemorates.The difference in (potential) meaning(s) between the two may be subtle, and some dictionaries may even indicate that "celebrate" and "commemorate" are synonyms, but according to memorial constitutionalists they are not really or, at least, not exactly synonymous.
Heroes and achievements can be celebrated or lionised.The same does not apply to anti-heroes, failures and blunders: they must be remembered, yes, but they can hardly be celebrated."Commemorate" is a feasible synonym for "remember", while "celebrate" is an exultant or jubilant mode of remembering.The closeness in meaning of "celebrate" and "commemorate" is not lamentable, however.On the contrary, it suggests their coexistence -contradictions notwithstanding.The German Denkmal and Mahnmal neatly capture the said contradictions.A Denkmal can celebrate (and may even commemorate), but a Mahnmal inevitably warns (and may even castigate).Monuments and memorials are aesthetic creations, and memorial constitutionalism contends that a constitution may, with interpretive consequences, be thought of as such a creation too. 39strained Mahnmal constitutionalism has resounded, in post-apartheid South Africa, the "Nie wieder!" that also inspired constitutionalism in a post-Holocaust Germany. 40 the strength of this Mahnmal constitutionalism, human dignity as a value has, for instance, gained an upper hand in our constitutional project in general, and in our constitutional jurisprudence.This is true of our equality jurisprudence in particular.provision conferring financial benefits on a judge's "surviving spouse" so as to extend such benefits to a same sex life-partner); and Daniels v Campbell 46 (a surviving "spouse" reaping benefits from legislative provision for maintenance was held to include a partner in a Muslim marriage). 47Minister of Home Affairs v Fourie;

MEC for
Lesbian and Gay Equality Project v Minister of Home Affairs, 48 the Constitutional Court judgment in which the statutory and common-law exclusion of same-sex life partnerships from the ambit of "marriage" was held to be unconstitutional, constitutes a high-water mark in the evolution of the constitutional jurisprudence on issues of identity and difference drawing on the compelling strength of memorial constitutionalism.
There are also some quite pedestrian cases in which memorial constitutionalism as a leitmotiv guided the Constitutional Court's reasoning decisively and had already done so since the early days of constitutional democracy. 49In Jafta v Schoeman; Van Rooyen v Stoltz, 50 for instance, the Court was called upon to consider a challenge to the constitutionality of certain provisions of the Magistrates' Court Act 51 which, in practice, had the effect that the houses of indigent judgment debtors -many of them first-time home owners who had acquired their homes with state subsidieswere attached and sold in execution to satisfy trifling debts.This, the applicants contended, was incompatible with the rights to adequate housing and security of The Postamble found its way into the transitional Constitution as an attempt to break a deadlock in the constitutional negotiations resulting from the constitutionmakers' inability to agree, in precise terms and in time for the adoption of the transitional Constitution, on how to deal with "gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge" from the past. 56The Postamble thus envisaged, in broad terms, the eventual adoption of cut-off dates and "mechanisms, criteria and procedures" for amnesty "in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past".The Promotion of National Unity and Reconciliation Act 57 was subsequently enacted, stipulating conditions -and laying down procedures to apply -for such amnesty.
Much of the spirit and tenor of the Postamble survived in the Preamble to the 1996 Constitution -with implications for the latter as a possible textual source-in-writing of transitional constitutionalism as interpretive leitmotiv.
"What is the point of our Bill of Rights?" Etienne Mureinik asked in one of the earliest commentaries on South Africa's first (or transitional) Bill of Rights, 58 and then set out to answer this question, exploring the bridge metaphor in the Postamble to the transitional Constitution: 59 If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to.It must lead to a culture of justification -a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.The new order must be a community built on persuasion, not coercion.
Justification and transition-as-a-bridge are not intrinsically related, but combining them presented an unusually powerful image of the "culture of justification" that many -like Mureinik -believed to be the quintessence of the new constitutional dispensation in South Africa.procedural requirements, but by relaxing them (through purposive interpretation) in order to "promote enfranchisement rather than disenfranchisement and participation [in] rather than exclusion from municipal elections". 85e South African Constitutional Court has also earned itself a complimentary reputation for its "... 'universalist interpretation' of constitutional rights, in a series of judgments relating mostly to criminal processes", 86 beginning with judgements such as S v Makwanyane 87 and S v Zuma. 88Vigilance in guarding the due process of the law in criminal proceedings is very much a distinctive attribute of a constitutionalism of justification.

Transformative constitutionalism: the bridge bridging
Transformative constitutionalism, in the words of Karl Klare, 89 ... connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law ... a transformation vast enough to be inadequately captured by the phrase "reform," but something short of or different from "revolution" in any traditional sense of the word.In the background is the idea of a highly egalitarian, caring, multicultural community, governed through participatory, democratic processes in both the polity and large portions of what we now call the "private sphere".
Klare wrote these words in an article on transformative constitutionalism in which he paid tribute to Etienne Mureinik, the principal proponent of a constitutionalism of justification.
Some critical legal scholars have questioned justificatory constitutionalism's use of the bridge metaphor to depict transition as a once-off, linear progression from "the old dispensation" to "the new", and thus from a culture of authority to a culture of justification.André van der Walt, for instance, claims that ... the bridge metaphor ... allows for another interpretation where the bridge is not simply an instrument for getting out of one place and into another, but an edifice that is inherently related to the abyss which it spans.Here, the focus is not on the two spaces on either side of the abyss, but on the abyss itself -the bridge is functionally and inherently linked to and obtains its significance from the abyss beneath it, so that the bridge is not a temporary instrument for a single crossing, one way, but allows and invites multiple crossings, in both directions, since there is no inherent value attached to being one side of the bridge rather than the other.In this alternative interpretation of the bridge metaphor the danger is to stay on one side, while the bridge allows us to connect one side with the other. 90ssel le Roux adds that it is not the bridge itself which is significant but the act of bridging, of linking the past and the future, reality and imagination, in order to create new ideas in the present. 91Memorial constitutionalism makes very much the same point: South Africa is still coming to terms with its notorious past along the way of still getting to grips with the future.The past cannot and should not be left behind -there is in other words no once-off crossing of the bridge -and the promise of the future gains much of its significance from engagement with the past. 92chael Bishop calls the bridge that Van der Walt and Le Roux metaphorically envision "a transformative bridge" and explains its significance as follows: [V]an der Walt and le Roux offer a space in which dialogue and transformation are truly possible, in which new ways of being are constantly created, accepted and rejected and in which change is unpredictable and constant.I would call this a transformative bridge because it envisions constant change and re-evaluation without end, rather than a move from one point to another ... [T]he transitional bridge is a path, while the transformative bridge is a space. 93at emerges from the discussion so far is that transformative constitutionalism has every potential to impact constitutional (and, more generally, legal) interpretation profoundly and guide, as a leitmotiv, both the interpretive mind-set (also read: theoretical position(s)) and the interpretive style (also read: methodology) of especially judicial interpreters of the Constitution, in an irrevocably new direction.to respect and protect, but (also) to promote and fulfil those rights.
Klare typifies the South African Constitution as "post-liberal" because it simultaneously entrenches conventional liberal democracy and the basic tenets of (and normative preconditions to) an all-out transformation of South African society. 95e distinctive traits of the transformative South African Constitution are said to be (among others) "the attainment of substantive equality, the realisation of social justice, the infusion of the private sphere with human rights standards and the cultivation of a culture of justification in public law interactions". 96Pius Langa, South Africa's former Chief Justice, in an extra-curial writing, conceives of such traits as challenges posed by the transformative Constitution, namely to procure equal access to justice for all, to educate law students who will be up to the demands of the kind of legal and social order envisaged in the Constitution, to rid the legal culture of its formalism, and to create a climate for and, indeed, conduce national reconciliation. 97e transformative nature of the Constitution has far-reaching implications for its interpretation and necessitates a decisive makeover of legal culture, especially as it manifests in the conventional manners (and assumptions) of adjudicative reasoning pertinent to the interpretation and implementation of enacted law.Klare writes in this regard: 98 The Constitution invites a new imagination and self-reflection about legal method, analysis and reasoning consistent with its transformative goals.By implication, new conceptions of judicial role and responsibility are contemplated.Judicial mind-set and methodology are part of the law, and therefore they must be examined and revised so as to promote equality, a culture of democracy and transparent governance.
According to Klare the drafters of the Constitution, having dramatically reworked substantive constitutional foundations and assumptions, could not have intended the new Constitution to be interpreted with reliance on conventional legalist methods of interpretation, thereby having its transformative qualities restrained by "the intellectual instincts and habits of mind of the traditional lawyer trained and professionally socialized during the apartheid era". 99ansformative constitutionalism thus inspires preference for non-formalist, nonlegalist and non-literalist approaches to constitutional interpretation and, very importantly, it explodes the myth that an a-or non-political legal interpretationand constitutional interpretation, in particular -is achievable.
South African courts (and the Constitutional Court in particular) have on several occasions in the course of construing the Constitution, made boldly transformative moves.Most of the judgements where this happened could well be depicted as instances of transformative constitutionalism, though in much of its jurisprudence on intimate relationships -which is outcome-wise very progressive -the Constitutional Court tended to rely on a rather conventional formalist, legalist and literalist approach to constitutional interpretation, thereby dashing Klare's hopes that transformative constitutionalism would go hand in hand with an innovative mode of constitutional interpretation shedding conventional -isms. 100 The Constitutional Court judgements most directly and evidently inspired by  " [a] theme associated throughout a [musical] work with a particular person, situation, or sentiment". 106This phenomenon is especially associated with the opera music of Richard Wagner.Some dictionaries will concede that a leitmotiv can also be "[a] recurrent idea or image in a literary work etc.". 107The entry "leitmotiv" is absent from most dictionaries of philosophy, dictionaries of ideas and dictionaries of the humanities and social sciences.The Woordeboek van die Afrikaanse Taal (WAT), on the other hand, generously explores quite a range of meanings of the word "leitmotiv" 108 (also "leidmotief", "leimotief" and "leitmotief" 109 ).
It is significant that "leitmotiv" is so closely associated with music, for there is much to say for the contention that reading and applying a Constitution (and, as a matter of fact, any enacted law) is more like performing a piece of music than like reading a newspaper.Enacted laws are made and meant to have effect, and their provisions must accordingly be construed to be of consequence.Its effect-directedness makes an enacted law-text -a constitution-or a statute-in-writing -very much like sheet music.Its meaning and effects cannot be grasped sufficiently simply by reading it.
Its "execution" or "performance" must also be experienced, or must at least be imaginable, to fully understand it.The actual effect of a constitutional provision can also not be gauged simply by reading and attaching meaning to signifiers that appear on paper, but rather from the manner in which the provision is (or could be) construed and applied in a real-life situation.Someone who can read music well can also "hear" the music when reading a score.distinguished) as interpretation and application.

Finale (and concluding perspectives)
"Objection!" a disillusioned (and by now wary and weary) reader of the Constitution may bellow, and then continue: "Enough of a Constitution with its perennial erosion and inevitable disempowerment of tried and tested common-law principles; with its enfeebling overemployment and mixing-up of assorted values; with its prolific production of sonorous jargon like subsidiarity, 'judicial self-restraint', trias politica, 'reading in conformity with the Constitution' and, on native African soil, ubuntu, and ubuntu." 111Must "leitmotiv" really be squeezed into an arsenal already replete with the law's construction equipment such as ideas, values, concepts, principles, rules, canons, theories and doctrine?Do we, in any event, need "leitmotiv" in our "lawspeak?"Our seemingly well informed, hypothetical denigrator is clearly sceptical (to say the least) about any possibility that working with (the notion of) leitmotivs can add value to the construction of enacted law.
A preponderance of opinion has it that the idea of leitmotivs sits most comfortably with pen-art (that is, creative writing such as poetry, prose and drama), the plastic arts and the performing arts (especially music).It is unnecessary, however, to devote time to proving or disproving this proposition, for it is also widely accepted that leitmotivs do occur and indeed thrive in text genres other than those just mentioned, and most certainly in law-texts too, albeit sporadically and often unnamed as such.
In several places in the constitutional text, a formulaic reference to "an open and democratic society" occurs, and in most instances it is followed by the further qualifier "based on human dignity, equality and freedom".The three key values just mentioned can also be referred to as the "triumvirate" of values.entitled Founding Provisions, and especially in section 1(a), human dignity, the achievement of equality and the advancement of human rights and freedoms are said to be values on which the state is This is serious business, which is why amendments to sections 1 and 74(1) of the Constitution require an "extraordinarily enhanced" majority of 75 per cent, surpassing the two-thirds benchmark for a "standard" or "ordinarily enhanced" majority.A leitmotiv could -in some instances more than in othershave a lot to do with values and principles and especially with reading and communicating (and "digesting") them.But a leitmotiv is not a value or a principle per se, and vice versa.
It is, as its name indicates, a motif of a sort -also referred to as a literary device.
Judiciously invoked, however, a leitmotiv is, in point of fact, much more than a literary device.It can, for instance, be quite useful in contemplating and developing a reading (and listening) strategy for non-literary texts too.The examples from the Bill of Rights above indeed show that the notion of a "leitmotiv" can also work quite efficiently with law-texts, and especially with the Constitution.
A leitmotiv is usually thought of as a phenomenon on the move, recurrently establishing and asserting itself, and frequently encountered in a text.But it is not all about movement, generated by, amongst other impulses, the recurrence of a prospective leitmotiv.A broad interest in the consequences of the motif's amassing power and attaining precedence to the point where it achieves the status of a leitmotiv is also up for scrutiny.The movements of a leitmotiv can then, for the time being, be reined in, since a host of other factors can at this point join in to add to or subtract from the status and weightiness of a prospective leitmotiv.Recall the founding provisions in section 1 of the Constitution.As explained before, they are entrenched more rigidly than other sections of the Constitution, requiring among other things an "extraordinarily enhanced" majority (75 per cent versus 66⅔ per cent) for their amendment.This in itself, directly and indirectly, enhances the status of these provisions.The full implications of this proposition stand to be determined from case to case and vis-a-vis -but also in interactive "partnership" with -other texts.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, but which at all times have the potential to be exceptionally rewarding.programmatiese leitmotivs en (iii) en (iv) as (B) leitmotivs van gedenkmatige hoop.
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.(A) is the pervasive reminder that the achievement of a negotiated transition embodied in a constitutional accord depends decisively on both well thought out strategic moves and due process, with (i) also functioning as a constitutionalism of justification.(A) furthermore measures the impact or "degree" of transition in a society on a sociopolitical and constitutional Richter Scale, and warns of either complacent in-or hectic over-action when reaping the benefits of constitutional democracy.(B) endeavours to make sense of the present in relation to the past, and vice versa, taking the pulse of hope for the future.It is, in other words, the leitmotiv of (the Constitution as) memory and promise.Note below the schematic rendition of what is discussed in the text.The sequence in which arguments unfold in the discourse below is essentially but not entirely the same as in the scheme.
Education: KwaZulu Natal v Pillay 41 must be understood in this context.In a sense Pillay is (to use a Dworkinian metaphor) 42 a chapter in a constitutional chain novel rigorously interrogating issues of identity and difference.A resoluteness not to repeat the injustices of the past has resulted in the affirmation of the status and dignity of several vulnerable groups and categories of persons who, under a culture of authority, had been marginalised and stigmatised for their non-compliance with "mainstream" morality and its preconceptions about how societal life is best 39 Le Roux 2005 TSAR 107.40 Du Plessis L "German Verfassungsrecht" 531.organised.Emblematic of the courts' (and especially the Constitutional Court's) affirmative endeavours are the confidence and forthrightness with which, unperturbed by the conventional public-private divide, they have addressed deficiencies in laws regulating intimate relationships.Landmark judgments that come to mind in this regard are National Coalition for Gay and Lesbian Equality v Minister of Justice 43 (the criminalisation of sodomy was found to be unconstitutional); National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 44 (the court read words into a statutory provision to extend immigration benefits that "spouses" of South African nationals enjoyed to same sex life-partners); Satchwell v President of the Republic of South Africa 45 (words were read into a statutory

(
residential) tenure entrenched in sections 26(1) and 26(3) of the Constitution.In considering the challenge, the Court per Mokgoro J made it clear that "[s]ecurity of tenure in our historical context" had to be a crucial part of the enquiry.52The Court's reasoning in this case as well as the remedial relief it eventually granted to mitigate the effects of the impugned legislation bear the hallmark of memorial constitutionalism.8Transitionalconstitutionalism: the one-way bridge of justificationTransitional constitutionalism as the constitutionalism of justification depicts the Constitution as a bridge from the "old" South Africa to the "new", and thereby from a culture of authority to a culture of justification. 53South Africa's 1993 (transitional) Constitution 54 concluded with an unusual Postamble (or Postscript), an exhibition of efflorescent language, entitled National Unity and Reconciliation and decreed 55 to form part of the substance of the Constitution.The Postamble anticipated that the Constitution would provide "a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex".It furthermore verbalised a quest for "the pursuit of national unity, the well-being of all South African citizens and peace", requiring "reconciliation between the people of South Africa and the reconstruction of society".51 Magistrates' Courts Act 32 of 1944.52 Jafta v Schoeman; Van Rooyen v Stoltz 2005 2 SA 140 (CC) paras 25-34.53 Mureinik 1994 SAJHR 31-32.54 Constitution of the Republic of South Africa 200 of 1993.
transformative constitutionalism as an interpretive leitmotiv are probably those dealing with the state's obligation to implement socioeconomic rights.Government of the Republic of South Africa v Grootboom 101 heralded a wholehearted (judicial) acceptance of the justiciability of the socioeconomic entitlements enshrined in the Bill of Rights (in sections 26 and 27 in particular).It furthermore emphasised competent courts' responsibility to enforce these entitlements by carefully crafting appropriate "orders with teeth" to redress government authorities' disinclination and/or incapacity to procure access to the commodities to which the said entitlements pertain.The Grootboom judgment blazed the trail for the bold and farreaching declaratory and mandatory orders in Minister of Health v Treatment Action Campaign, 102 compelling the fulfilment of the state's constitutional mandate (and obligation) to supply and administer Nevirapine to HIV-positive women and their 99 Klare 1998 SAJHR 156. 100 Klare 1998 SAJHR 156.101 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC).102 Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC).
it is transformative constitutionalism that pilots and shapes meaningful implementation of the socioeconomic rights enshrined in the Bill of Rights.According to Sandra Liebenberg 104 South Africa's transformative Constitution, with its decided emphasis on socioeconomic rights, "aims to facilitate the transformation of society by setting right the wrongs of the past", but also "aims at facilitating the construction of a new political, social and economic order 'based on democratic values, social justice and fundamental human rights'".105The Constitution is, in other words, both backward-looking and forward-looking -an insight that also resonates favourably with memorial constitutionalism.10IntermezzoSo far only tentative conclusions can follow from a still incomplete catalogue of leitmotivs in action, gleaned from actual instances of constitutional adjudication.Working with the samples selected it has become clear that an incontrovertible classification of judgments with reference to dominant leitmotivs determining their outcome is not achievable.The impetus of memorial constitutionalism, for instance, decisively codetermined the outcome of Constitutional Court cases in which rights to criminal due process in accordance with the exigencies of a constitutionalism of justification were meticulously upheld.It also appeared that a progressive and activist -backward-and forward-looking -adjudication of socio-economic rights issues can draw momentum both from transformative and memorial constitutionalism.How then do leitmotivs help us to do "better" constitutional interpretation?To begin with, they show up rights interpretation and application as more than just an intellectual or "logical" process of deduction and subsumption.It is also an engaging performance of aesthetic significance, into the spirit of which an interpreter can enter.Most dictionaries give, as the primary meaning of "leitmotiv", something like 103 Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC).104 Liebenberg Socio-economic Rights 25.
Section 7(1) introduces the Bill of Rights as cornerstone of democracy in South Africa" affirming, among other values, "the democratic values of human dignity, equality and freedom".Section 39(1) enjoins adjudicative fora, construing legislation and developing common and customary law, to "promote the values that underlie an open and democratic society based on human dignity, equality and freedom".Of the same tenor are stipulations in section 36(1) regarding the extent to which a law of general application may limit a constitutional right.The limitation must, among other things, be "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".These are but some examples of the constitutional references to a free and open society and the triumvirate of values on which it is based.The said examples come from section 1 of the Constitution and from the Bill of Rights, and they closely link (the ideal of) an open and democratic society with the triumvirate of values, tellingly instantiating a leitmotiv which recurs as the keynote or defining idea, motif or topos 112 throughout the Bill of Rights, but arguably also throughout the Constitution as a whole.This leitmotiv is the (ideal of an) open and democratic society based on human dignity, equality and freedom.

4 Exit literalism and intentionalism, enter constitutionalism
... cannot be alternatives among which a judge chooses; they are multiple poles in a complex field of forces, among which judges navigate and negotiate.I Theoretical positions, or aspects of them, can and do, for instance, , motifs or topoi guiding instances of constitutional interpretation.The same leitmotiv can manifest (aspects of) different theoretical positions on constitutional interpretation, but it is hardly conceivable that contradictory or conflicting theoretical positions will manifest in a significant number of similar or corresponding leitmotivs.Freedom is one of the underlying values of our Bill of Rights and courts must interpret all rights to promote the underlying values of "human dignity, equality and freedom".These values are not mutually exclusive but enhance and reinforce each other .Differentiating between mandatory and voluntary practices does not celebrate or affirm diversity, it simply permits it.That falls short of our constitutional project which not only affirms diversity, but promotes and celebrates it.We cannot celebrate diversity by permitting it only when no other option remains.37 position in South Africa occasioned the development of a hierarchical order of primacy involving the canons of and aids to statutory interpretation.33DuPlessis"Interpretation"32-32-32-33.34DuPlessis"Interpretation" 32-52 -32-56.ideasSunaliPillay, a teenage Hindu girl, enjoyed an excellent school education at the Durban Girls' High School.In breach of a stipulation in her school's Code of Conduct Sunali, upon reaching physical maturity, had her nose pierced and a gold stud inserted not for fashion purposes, but to honour a long-standing family tradition, as a religious ritual and for cultural reasons.The school management refused to grant Sunali an exemption to wear the nose stud and this kick-started a series of litigation ending up in the Constitutional Court.The Constitutional Court dismissed a number of arguments on behalf of the school, but of significance for the present purposes was the Court's response to the school's argument that wearing a nose stud was not a mandatory tenet of either Sunali's religion or her culture, and that the refusal of the exemption she sought would therefore not force her to do something against her religion or culture.The Court per Langa CJ disagreed: .. The protection of voluntary as well as obligatory practices also conforms to the Constitution's commitment to affirming diversity.It is a commitment that is totally in accord with this nation's decisive break from its history of intolerance and exclusion.
appreciation by many South African courts and by the Constitutional Court in particular, 60 and has thereby indeed established itself as an interpretive leitmotiv of 56For more on the nature of the compromise the parties reached, see Dyzenhaus Truth, Reconciliation 1-6.57 Promotional of National Unity and Reconciliation Act 34 of 1995.58 Ch 3 of the transitional Constitution.and In Pharmaceutical Manufacturers Association of SA.In re: The Ex Parte Application of the President of the RSA 63 the Constitutional Court, for instance, proclaimed the essential unity of the Constitution and (administrative) common law in dealing with the exercise of public power, 64 rejecting a suggestion -of the Supreme Court of Appeal in Commissioner of Customs and Excise v Container Logistics (Pty) Ltd; Commissioner of Customs and Excise v Rennie Group Ltd trading as Renfreight 65that any common law from an era predating the inception of a constitutional culture of justification has continued to survive undisturbed.The judgments in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 66 and Minister of Health v New Clicks South Africa (Pty) Ltd, 67 duly accounting for the effects of the 64 The judgement predates the commencement of the Promotion of Administrative Justice Act.65 Commissioner for Customs and Excise v Container Logistics (Pty) Ltd; Commissioner for Customs and Excise v Rennies Group Ltd t/a Renfreight 1999 3 SA 771 (SCA).73 Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and Housing, Gauteng 2005 1 SA 530 (CC).First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) para 100.