Right after all : reconsidering New National Party in the South African canon

Abstract

No scholar currently defends the majority’s decision on voting rights in New National Party v Government of the Republic of South Africa. Its place in the South African canon is one of rejection: a classic mistake, or at least an illustration of the problems of excessive deference, technicality, and/or nervous political calculation. Against this, I argue that the decision is in fact eminently defensible. Its universal rejection is therefore very intriguing: why have so many scholars treated the decision as clearly wrong, and the dissent of O’Regan J as clearly right? One of the reasons is that the majority judgment of Yacoob J is standardly misread, in part because he, confronting issues that were brand new in 1999, uses terms other than those that would soon thereafter become settled in South African constitutional talk. But the deeper and more interesting reason is that currently dominant ways of understanding constitutionalism in South Africa – interlocking ideas about apartheid, about the ANC, about the Constitutional Court and about rights – prime us to view New National Party as a clear error. That it is not, in fact, a clear error, therefore, should lead us to reverse course and reconsider the canonical ideas that label it as such.