Deconstituting transition : law and justice in post-apartheid South Africa.

Abstract

The aim of this study is to suggest, by selective example, a form of jurisprudence which relates to and may have a salutary effect upon law and justice in post-apartheid South Africa. I describe three ways in which South Africa can be regarded as negotiating a transition - from apartheid to post-apartheid, from modem to post modern and from colonial to postcolonial. I argue for a jurisprudence which directly concerns itself with each of these three overlapping and mutually informing modes of transition: an approach to law and justice which is post-apartheid, postmodem and postcolonial. Since my account of law and justice engages with all three transitions, it has the potential to bring about a positive transformation in the conservative legal theory currently in favour with the judiciary. I suggest that the positivist approach followed by the judiciary during apartheid led in most cases to a removal of ethics from the legal universe and a diremption of law and justice. I contend further that the current approach of the judiciary still bears the hallmarks of positivism, in its continued adherence to the 'literal approach' to constitutional interpretation and its misunderstanding of the role of morality in adjudication. I argue that positivism, with its potential to produce injustice, should be abandoned in favour of an approach based on a postmodem epistemology which incorporates a concept of justice which is both substantive and avoids the pitfalls of natural law: the historical exhaustion of classical teleology and the failure of religious transcendence to command widespread respect. The postmodem theorists I draw on, Michel Foucault, lacques Derrida and lean-Francois Lyotard, cumulatively point to the fai lure of the Enlightenment to ground legal practice upon the universalising faculty of reason. Postmodem jurisprudence. informed by postcolonial theory, postulates justice as an ethic of alterity and is able to reintroduce ethics into law in a manner which avoids the critique of Enlightenment epistemology. Having set out the jurisprudential views of these theorists, I turn to the activity of constitutional interpretation to demonstrate the way in which the judiciary's current approach to interpretation could be positively transformed through the introduction of interpretative techniques related to poststructuralism and specifically deconstruction. I argue that interpretation is an activity necessarily informed by values and that the indeterminacy of the language of the Constitution provides the interpreter with choice. Provided the choice is ethically motivated, interpretation is a transforrnative activity. Having concluded the expository section of this dissertation, I provide a close reading of two Constitutional Court judgements, Azanian Peoples Organisation (AZAPO) v President of (he Republic of South Africa and S v Makwanyane and Another. These judgements, decided under the interim Constitution, are arguably the most important judgements of the Constitutional Court to date. They represent sites of the judiciary's internal struggle to respond to the requirement for a new epistemology and practice of interpretation, which provide the means to adjudicate justly and also suggest ways in which to justify its decisions. My study is largely restricted to these two cases, and although I refer to other cases for their bearing on particular issues, I do not aim at a comprehensive survey of the Constitutional Court's record to date. Nevertheless. this study concludes with some provisional remarks about the record of the Constitutional Court since its inception and suggests possible ways in which the jurisprudence I have argued for may be pursued in furtherance of justice.