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THE CONSTITUTION
On his travels Professor Fagan, who also holds the
WP Schreiner Chair in the department, made some
major inroads into his ambitious schedule. At least two
of his projects were concerned with the influence of
the South African Constitution on private law. First, he
penned a chapter on the right to personal security for a
book on human rights and private law in Scotland and
South Africa, edited by Professor Elspeth Reid of the
University of Edinburgh Law School and UCT’s Deputy
Vice-Chancellor Professor Danie Visser. Second, he
wrote an article replying to Judge Dennis Davis’s
criticisms of his published inaugural lecture for the
South African Law Journal
.
Professor Fagan’s November 2009 inaugural lecture,
titled – pointedly –
The secondary role of the spirit,
purport and objects of the Bill of Rights in the Common
Law’s development,
argued as follows: The Constitutional
Court has repeatedly, if not always expressly, endorsed
the proposition that the spirit, purport, and objects of the
country’s Bill of Rights may be reason enough for the
development of the Common Law. This means that every
court is obliged to adapt the Common Law whenever it
does not live up to the spirit, purport, and objects of the
Bill of Rights.
But, says Professor Fagan, this proposition is false. Rather,
the role of the Bill of Rights in the development of the
Common Law is merely a secondary one, he argued. If
this is the case, it could serve only as a ‘tiebreaker’. “The
Constitution regards the spirit, purport, and objects of the
Bill of Rights only as reasons for choosing between ways of
developing the Common Law that are already justified by
reasons that have nothing to do with the spirit, purport, and
objects of the Bill of Rights.” This thesis was challenged
by Judge Dennis Davis (
South African Law Journal, Vol.
129
) and it is to this challenge at which Professor Fagan’s
rejoinder is aimed. It is a topic that is likely to generate
further stimulating debate in the years ahead.
Race, redress and remembrance in
the South African Constitution
Other interesting debates, and another perennial in
South African discourse, is around race, redress, and
remembrance. Even the Constitutional Court does not
always get race quite right, says Professor Pierre de
Vos in his inaugural lecture,
The Past is Unpredictable:
Race, redress and remembrance in the South African
Constitution
, delivered in 2011.
Professor De Vos, who holds the Claude Leon Foundation
Chair in Constitutional Governance in the Department of
Public Law, started his lecture close to home, with UCT’s
admissions policy (one of the countless issues he’s
covered in his many media commentaries and in his [in]
famous blog,
Constitutionally Speaking
). If the university
has taken a beating in the media and in various corners
of the country for this policy, which uses race as a proxy
for disadvantage, says Professor De Vos, it is because its
critics have overlooked the reality that the issues of race
“continue to permeate every aspect of both public and
private life” in South Africa.
There is a paradox at the heart of attempts to rely on
race in order to overcome the effects of past and ongoing
racism and racial discrimination. While it is necessary to
invoke racial categories in order to address the effects
of racism and racial discrimination effectively, a reliance
on those categories runs the risk of perpetuating the
inequalities and race-based hierarchies of Apartheid.
The Constitutional Court, too, has not always taken
sufficient care when bandying about those racial
categories, especially when tackling the issues of race
and redress, says Professor De Vos.
It is true that the Constitution prohibits unfair discrimination
on the basis of a range of criteria – race included. On the
other hand, it does not prohibit (and sometimes even
“The Constitution regards the spirit,
purport, and objects of the Bill of
Rights only as reasons for choosing
between ways of developing the
Common Law that are already justified
by reasons that have nothing to do
with the spirit, purport, and objects of
the Bill of Rights.”
Two areas where rights are hotly contested are land law and
mineral law, which are inextricably bound to property law.