Abstract:
The extra-curial writings of the late Chief Justice Langa contain several brief
but suggestive references to the role of the People in South African constitutionalism
– references that go beyond the standard court-centric picture in
which the people, having underwritten the Constitution as popular sovereigns,
are thereafter confined to supporting roles: bringing cases, complying
with orders, supporting the courts to defend their independence. The writings
of the late Chief Justice should encourage us to consider the more active and
positive role that the people can play as constitutional agents, including as an
ongoing source of interpretative activity. This constitutes an important qualifier
to the dominant tendency in current writing on South African constitutionalism
to see political forces as threats and public opinion as an obstacle. It is
also more than an attractive but hypothetical possibility: I argue that it will
assist us to see how much of the South African Constitutional Court’s activity
since 1994, including all of its most globally-celebrated bold cases, are
constructed to a significant extent on pre-existing public foundations built by
forces both inside and outside the ANC government – an important rebuttal
to prevailing court-centric accounts.
