Abstract
This essay takes a look at the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. The advent of constitutional democracy in South Africa went hand in hand with an about-turn in the interpretation of enacted law-texts (including the Constitution) and a critical interrogation of certain dominant beliefs about the interpretation of law in general and enacted law in particular. Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are discussed, concentrating mainly on the jurisprudence of the Constitutional Court. Central to the author's approach is an acknowledgement of the decisive actuality of an interpreter's theoretical position becoming visible through (interpretive) leitmotivs. These recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs pertinent to certain constellations of events in constitutional interpretation are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism; and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs. The author concludes that, although scouting out and engaging with leitmotivs call for profound reading and for text analysis of a sort with which "logical" jurists are not always too comfortable, the said endeavours have the potential to be exceptionally rewarding.
Highlights
The constitutional makeover of a dilapidated South African state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship
The commitment to substantial constitutionalism saw South Africa efflorescing as a champion for constitutional democracy
The advent of constitutional democracy in South Africa has brought about a revolution in the field of the interpretation of enacted law, that is, law made by demonstrable, constitutionally authorised legislatures whose distinctive province is lawmaking.[1]
Summary
The constitutional makeover of a dilapidated South African state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship. The advent of constitutional democracy in South Africa has brought about a revolution in the field of the interpretation of enacted law, that is, law made by demonstrable, constitutionally authorised legislatures whose distinctive province is (or at least significantly includes) lawmaking.. Statutory interpretation in South Africa had been deficient long before the advent of constitutional democracy, but the challenge of construing a supreme Constitution, an enacted law-text beyond compare in so many respects, brought matters to a head and set off what is referred to as a linguistic, interpretive or hermeneutical turn. It is, in other words, the leitmotiv of (the Constitution as) memory and promise. ↔ (A) PROGRAMMATIC LEITMOTIVS (B) COMMEMORATIVE LEITMOTIVS (I) TRANSITIONAL CONSTITUTIONALISM (III) MONUMENTAL CONSTITUTIONALISM (II) TRANSFORMATIVE CONSTITUTIONALISM (IV) MEMORIAL CONSTITUTIONALISM
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