THE STATUS AND ROLE OF LEGISLATION IN SOUTH AFRICA AS A CONSTI- TUTIONAL DEMORACY: SOME EXPLORATORY OBSERVATIONS*

This note explores the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our constitutional democracy.  First, it is shown how constitutional review with the necessary judicial self-restraint has instilled respect for legislation in the context of and with reference to the separation of powers.  Second, it is shown that and how statutes have become (subsidiary) allies to the Constitution and have been standing the realisation of constitutional values in good stead.  Finally, it is argued that the constitutional requirement of popular participation in legislative deliberation has also added to the esteem for legislation in our constitutional democracy.

In the face of probably one of the most unequivocal forms of constitutional review in a modern day state, all legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our In this note I wish to briefly explore this proposition, beginning with a few prosaic observations about statute law, 7 more or less uncontentious (until 27 April 1994 at least) and helpful in establishing a discursive context.
• Legislation together with judicial precedent and custom are generative sources of South African statute, case and customary law respectively, in other words, means through which legal norms come into force and have effect.
• Some scholars distinguish these "formal sources" from the historical or "material sources" of South African law, the latter denoting the Roman-Dutch and English origins of present-day legal norms and principles.Law deriving from these historical sources, augmented by and developed through case and, to a lesser extent, customary law, constitutes (the) South African common law.
• Statute law is indispensable for the regulation of the modern state, but whether it is a prime source of origin of South African law has been contentious, due to a curious tension between statute law and common law that existed under parliamentary sovereignty.Courts, deferring to parliament as sovereign law-maker, endeavoured to give meticulous effect to the intention of the supreme legislature, often treating long established precepts of the common law with disdain in order to give optimum effect to apartheid laws.In areas (rightly or wrongly) regarded as "politically non-controversial", statute law was, however, also treated as an exception to the common law and the former was construed restrictively vis-à-vis precepts and principles of the latter.struction (like, for example, section 39(2)) have become increasingly significant.
• Finally statutes have binding force because their authors or "makers" are invested with law-making authority (directly 8 or ultimately 9 derived from the supreme Constitution).Statutes are therefore construed to be valid and of effect rather than invalid and of no effect.
I briefly want to deal with three features of our system of constitutional review that have not only preserved, but have in actual fact also enhanced the status and stature of legislation and have assigned to it an unprecedented role as a source of law in our constitutional democracy.These factors are, first, the court's exercise of constitutional review with restraint; second, the fact that statutes of a certain kind have become crucial allies of the Constitution, and, third, the enhancement of quality popular participation in legislative deliberation.

Constitutional review and judicial self-restraint
Certain reading strategies and remedial measures have been designed to help ensure that the constitutional review of legislation proceeds with circumspection.Interpretation in conformity with the Constitution -sometimes also referred to as "the presumption of constitutionality" 10 -is an example of a reading strategy in this category.
A prima facie unconstitutional (and by that token potentially impugnable) provision is to survive constitutional scrutiny if it can -through the adaption of its language, if so required -be read to be constitutional without distorting it or straining its "plain meaning".
11 Such a reading can be either narrower or more restrictive than other possible 8 In the case of original legislation.9 In the case of delegated legislation.Section 9(4), for instance, obliges the national legislature to enact legislation "to prevent or prohibit unfair discrimination" while section 33(3), also in a mandatory manner, enjoins the national legislature to enact legislation to give specific effect to rights and procedures associated with just administrative action.The Promotion of Equality and Prevention of Unfair Discrimination Act general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed." Second, the provisions of a subsidiary constitutional statute must, like any other statute, be construed to promote the spirit, purport and objects of both the Bill of Rights, and the specific constitutional provision(s) to which more concrete effect is given.The said provisions may also not be allowed to decrease the protection that a constitutional right affords or to infringe any other constitutional right.

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A subsidiary constitutional statute may, in the third place, "extend protection beyond what is conferred by" the constitutional provisions to which it is subsidiary.

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From the discussion above it is abundantly clear that subsidiary constitutional legislation enjoys a considerable status and has a very special role to play in the fulfilment of crucial constitutional objectives.It is therefore an indispensible ally of the Constitution.

Popular participation in legislative deliberation
Since Middelburg Municipality v Gertzen 22 it has been readily accepted that the status of legislation is largely determined by the degree to which its adoption resulted from deliberation.Because provincial councils were deliberative law-makers provin- reminds us: "Legislation and legislatures have a bad name in legal and political philosophy, a name sufficiently disreputable to cast doubt on their credentials as respectable sources of law."Eskridge, however, also sees light for the Cinderella discipline: "Once scorned and neglected, confined to the kitchen, it now dances in the ballroom." 31 And legislation then?
Just imagine that legislation herself was the Cinderella in Eskridge's then we here in South Africa might, from bitter experience, warn: "Watch her! Tame her -lest she grows up to become an angry and vengeful Amazon!"We have seen a form of social engineering in this country -Apartheid was its name -which would have been impossible without…legislation!And now we are rebuilding our country and transforming our society and its institutions, and in the course of it all legislation is coming strongly to the fore!So what are we heading for?A post-apartheid Amazon?
I trust not.The Amazon of Apartheid grew under and drew her strength from the sovereignty of a biased minority parliament.Present day legislation is heading for its heyday, but under the discipline, guidance and authority of a supreme Constitution.I would suggest that all of us working with legislation should carry this message further, and canvass its implications.I trust that this note has planted but a tiny seedling to this effect.
was enacted "to give effect to and regulate the fundamental rights conferred by section 27" of the interim Constitution, but section 27 neither explicitly required nor envisaged legislation amplifying and giving more concrete effect to it.Sections 23(5) and (6) of the 1996 Constitution do, however, envisage and authorise, in a permissive vein, legislation to regulate collective bargaining and recognise union security arrangements contained in collective agreements.A comparison of the PEPUDA, PAJA an LRA examples above shows that subsidiary constitutional legislation can be enacted pursuant to a constitutional obligation or a permissive constitutional authorisation or even of the national legislature's (and arguably any other legislature's) own accord.There is a special relationship between the Constitution and this kind of legislation with consequences for the interpretation and application of both, irrespective of whether the subsidiary legislation was passed pursuant to an obligatory or permissive constitutional authorisation or of a legislature's own accord.First, a litigant taking action because of an alleged infringement of a constitutional right (or rights) to which a subsidiary statute gives more concrete effect, cannot cir-15 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.16 Promotion of Administrative Justice Act 3 of 2000.This act is closely associated with the Promotion of Access to Information Act 2 of 2000 (PAIA) which was also enacted as an "ally to the Constitution" to give effect to the right of access to information entrenched in s 32(1) of the Constitution.This is a straightforward instance of what I call adjudicative subsidiarity, commensurate with the following dictum of Kentridge AJ in S v Mhlungu: 19 "I would lay it down as a Paper presented at the First Konrad Adenauer Foundation and Faculty of Law (North-West University) Human Rights Indaba on The role of Local Government and the Lower Courts in realising Socio-economic Rights in North-West, Northern Cape and Free State Provinces held at the Feather Hill Spa, Potchefstroom on 29 October 2010.** LM du Plessis B.Iur et Comm, B Phil , LLD (PU vir CHO) Hons BA (Stell), research professor, Northwest-University, Potchefstroom Campus.(Lourens.duplessis@nwu.ac.za).Constitution of the Republic of South Africa, 1996.The transitional Constitution, ie the Constitution of the Republic of South Africa Act 200 of 1993, included a provision in a similar vein and to the same effect, namely s 98(5).
* 1 6 Affordable Medicines Trust v Minister of Health 2005 6 BCLR 529 (CC); 2006 3 SA 247 (CC) para 36 n 31 where Ngcobo J observed that "it is by now axiomatic that, where possible, legislation ought to be construed in a manner that is consistent with the Constitution".Note, however, the following caveat in HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism 2007 11 BCLR 1230 (SCA) para 7 per Combrinck JA: "The Constitution does not permit a court to strain the meaning of a statutory provision under its guise particularly when there is more than one constitutional value involved." 10 Devenish Interpretation of Statutes 210-212; De Ville Constitutional and Statutory Interpretation 223-225.11NationalCoalitionfor Gay & Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC); 2000 2 SA 1 (CC) para 23; Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: in re Hyundai Motor Distributors (Pty) Ltd v Smit 2000 10 BCLR 1079 (CC); 2001 1 SA 545 (CC) paras 24-26.See also Laugh it Off Promotions CC v SAB International (Finance) BV t/a Sabmark International 2005 8 BCLR 743 (CC); 2006 1 SA 144 (CC); Du Toit v Minister of Transport 2005 11 BCLR 1053 (CC); 2006 1 SA 297 (CC) para 29; National Director of Public Prosecutions v Mohamed 2002 9 BCLR 970 (CC); 2002 2 SACR 196 (CC) parareadings, in other words, a reading-down, or a more extensive reading (or one eliminating ambiguity), that is, a "reading-up".14Severanceand reading-in are constitutional remedies -as opposed to reading strategies -commensurate with section 172(1)(b) of the Constitution which allows for "any order that is just and equitable" as an outcome of constitutional adjudication.Severance or reading-in can be ordered on the strength of this provision.2Statutesas allies of the ConstitutionA growing body of subsidiary constitutional legislation, designed to amplify and give more concrete effect to key provisions of the Constitution and the Bill of Rights, has seen the light since 1994.In many (but not all) cases, the Constitution explicitly anticipates, authorises and indeed requires the enactment of subsidiary statute law.33; 13 Coetzee v Government of the RSA, Matiso v Commanding Officer, Port Elizabeth Prison 1995 10 BCLR 1382 (CC); 1995 4 SA 631 (CC) para 16; Case v Minister of Safety & Security, Curtis v Minister of Safety & Security 1996 5 BCLR 609 (CC); 1996 3 SA 617 (CC) para 1. 14 National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC); 1999 1 SA 6 (CC); Satchwell v President of the Republic of South Africa 2002 9 BCLR 986 (CC); 2002 6 SA 1 (CC); Daniels v Campbell 2004 7 BCLR 735 (CC); 2004 5 SA 331 (CC); Niemand v S 2002 3 BCLR 219 (CC); 2002 1 SA 21 (CC).
to parliamentary legislation, were, for example, by virtue of the Gertzen judgment, original -as opposed to delegated -legislation.Laws democratically made thus command appropriate respect, and it is significant that the Constitutional Court has understood both the transitional and the final constitutions to invest municipal councils, who were delegated legislatures before 27 April 1994, with an original leg- ordinate 27 Section 4 of PAJA, in a similar way, provides for public participation in the making of delegated legislation.28 Duly putting any legislation in the process of adoption through its paces of public participation, greatly enhances its eventual status and stature as a source of law.27 Cf eg Matatiele Municipality v President of the Republic of South Africa (1) 2006 5 BCLR 622 (CC); 2006 5 SA 47 (CC); Doctors for Life v Speaker of the National Assembly 2006 12 BCLR 1399 (CC); 2006 6 SA 416 (CC); Matatiele Municipality v President of the Republic of South Africa (2) 2007 1 BCLR 47 (CC).Cf also King v Attorneys Fidelity Fund Board of Control 2006 4 BCLR 462 (SCA); 2006 1 SA 474 (SCA).