Dennis Davis

Transformative constitutionalism and the common and customary law

Abstract A basic assumption of the Constitution, which finds expression in its ‘development clauses’ (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by apartheid. We examine South African judges’ performance in implementing the development clauses through the lens of legal culture. A central concern is the potential of traditional South African legal culture to constrain the transformative project. South Africa has an advanced Constitution informed by the values of social interdependence and ubuntu, but its jurists continue to deploy traditional methods of legal analysis. Ironically, the United States has a classical liberal and individualist charter, but the Legal Realist tradition bequeathed American lawyers a storehouse of modernist legal methods well suited to South Africa’s transformative project. Surveying the cases over the first 15 years of the new dispensation, we find some leading judgments that demonstrate the capability of the courts to transform the common law and that provide glimpses of a more egalitarian, inclusive, and caring legal infrastructure. The chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-ofpowers vissues. The inhibiting effect of mainstream legal culture is not entirely responsible for these difficulties, but concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

The application of the 1996 Constitution in the private sphere

‘Lawyers have pictured law as reason encoded in the doings and dreams of power just as economists have seen actual market economies and their law as approximations to a pure system of rationality a...

The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitutions

(1996). The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitutions. South African Journal on Human Rights: Vol. 12, No. 3, pp. 361-404.

Transformation : the constitutional promise and reality

Abstract The Constitution promised a form of social democracy built upon a transformed legal system. While transformation cannot be equated with revolution and hence the complete eradication of existing legal norms and concepts, the constitutional text promised the development of the existing legal system into a body of law which would, as coherently as possible, reflect the core values of the Constitution. This article examines the law of contract, socio economic rights and identity politics in order to evaluate the progress made during the first fifteen years of constitutional democracy. It concludes that, notwithstanding a legal text that sought expressly to guide legal development, the courts have brought about change more at the margin than in the reconstitution of the entire legal system. In particular, the influence of legal culture is found to be a key explanation for this halting jurisprudential progress.

John Dugard's legacy to human rights activism and litigation : panel discussion

The first day of the conference was dedicated to John Dugards work and legacy in human rights law in South Africa. This day addressed Johns extensive academic contributions, as well as his more practical and strategic interventions in relation to human rights advocacy and litigation. One of the highlights of the day was a panel of past and present human rights lawyers and advocates, all of whom had had been influenced and inspired by John both directly and indirectly. Gilbert Marcus and Halton Cheadle both worked at the Centre for Applied Legal Studies (CALS), founded by John Dugard at the Wits School of Law in 1978. Jody Kollapen, outgoing chairperson of the SA Human Rights Commission, met John as a young law student. Their contributions attest to Johns enormous influence on anti-apartheid legal work in the 1980s and beyond. Fatima Hassan, Stuart Wilson and Jackie Dugard all worked at CALS after Johns departure in 1979, and speak to its continuing tradition of human rights work, and Johns legacy. The panel was chaired by Dennis Davis, who succeeded John Dugard as CALS director in 1979.

Private law after 1994 : progressive development or Schizoid confusion? : notes and comments

The Constitution sets out to answer that question in the negative. It conferred significant powers and responsibilities upon courts to interrogate and, if necessary, alter both common and customary law in order to promote the foundational values contained in the Bill of Rights. That power or obligation to develop the common law is to be found in ss 8 and 39(2) of the Constitution, clauses which can be termed the development clauses of the Constitution.

The administration of justice

The position of National Director of Public Prosecutions (NDPP) has been something of a poisoned chalice in recent years. The last four incumbents have been at the centre of political controversy of some sort. Two (Bulelani Ngcuka and Vusi Pikoli) were dismissed by successive Presidents and have challenged their dismissals with a measure of success; a third (Mokotedi Mpshe) faced heavy public criticism for the decision to withdraw charges against the President, Mr Jacob Zuma; and the fourth (Menzi Simelane), who is the incumbent, faced questions over whether he is fit and proper for appointment as NDPP.