The people, the court and Langa constitutionalism

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.