We live in extraordinary times which we never dare label ‘normal’ (‘new’ or otherwise).

Does this mean that our highest law, the Constitution, must be adapted to the times by way of a flexible interpretative approach by the courts? Is the era of Covid-19 and lockdown a time for the Constitution to prove just how much of a ‘living document’ it truly is?

The African National Congress, the Electoral Commission (IEC), and the Inkatha Freedom Party, among others, wish to answer these questions affirmatively. They have asked the Constitutional Court to effectively disregard a clear and unambiguous constitutional provision – section 159(2) – and grant a request for the postponement of the 2021 municipal elections. I have already argued that the Constitutional Court cannot (or, rather, may not) do so.

By way of reminder, section 159(2) of the Constitution provides in part that ‘… [a municipal] election must be held within 90 days of the date that [Municipal] Council was dissolved or its term expired.’ The latest possible date for this is 1 November 2021.

In my previous article, I addressed the crucial distinction between an ‘interpretation’ (reading) of the Constitution, and a ‘construction’ (reading-in) of constitutional meaning. Here I wish to address a fundamental misunderstanding about what it means to regard the Constitution as a so-called ‘living document’.

The idea of a living constitution, like so much of our jurisprudential discourse, comes from the United States. What American living-constitutionalists (who emphasise the adaptability of constitutional meaning to changing circumstances) have in common with American originalists (who emphasise the original meaning of their Constitution at the time it was adopted) is that both start with the constitutional text. Both are interpreting and construing the same constitution – indeed, broadly neither camp claims to nor wants to depart from that constitution.

Living constitutionalists believe that the Constitution’s nature as a ‘living document’ or a ‘living law’ is reflected in the text. Indeed, when one is dealing with a (supreme) written constitution, the text cannot be evaded. It is not a guide – it is the inviolable rule.

Discrete facts

Within this context, the text might be written in broad strokes, meaning it can be adapted to new situations. The implication of applying the written rule of the Constitution, in other words, might be different from time to time. Words like ‘reasonable’ and ‘fair’ are adaptable and always depend on the discrete facts relating to the situation at hand.

Gabriel Crouse, referring to remarks by Chief Justice Mogoeng Mogoeng, recently made clear that a phrase like ‘free and fair elections’ could mean one thing in 2019 but another in 2021. Elections must always be free and fair, but the context and circumstances might dictate how this standard is to be applied given the reality one is faced with.

This is living constitutionalism.

What is not living constitutionalism is looking at section 42(6) of the Constitution, which says, ‘The seat of Parliament is Cape Town…’, and then deciding the seat of Parliament is actually in Polokwane. That is not ‘living constitutionalism’ – that is simply a breach of constitutional supremacy. It borders on a criminal kind of constitutional negligence. If this is how we approach the Constitution, we might as well get rid of it entirely, because we are not ‘adapting’ the Constitution to new circumstances – we are ignoring the Constitution entirely.

The applicants before the Constitutional Court in the municipal elections postponement case are not interested in the Constitution or its text. They have a predetermined goal in mind: The elections must be postponed for public health, political convenience, or some other ‘good reasons.’ The constitutional text found in section 159(2) unambiguously stands in the way of their predetermined goal, so the text must either be stretched or broken entirely to ensure compliance.

The applicants have gone with the latter route, opting to brazenly ask the Constitutional Court to disregard the written language of our supreme Constitution. If the court grants the postponement – a power that it does not have – Professor Koos Malan will (again) be proven correct in his argument that in reality, there is no supreme Constitution in South Africa.

The alternative remedy

To be clear, the Constitutional Court does not have the jurisdiction to grant a postponement for the municipal elections. This was addressed in the previous article. But the alternative remedy that the IEC seeks is particularly jarring and relevant in the context of undermining the supremacy of the constitutional text.

If the Constitutional Court does not grant the postponement, the IEC asks in the alternative that the court (rightly) declare the IEC’s failure to comply with constitutional requirements to be unlawful and unconstitutional, but (wrongly) that the order compelling the IEC to rectify its failure to comply must be suspended until February 2022. The effect – the substance – of this alternative remedy is the same as the first remedy: the election will be postponed.

The Constitutional Court may also not grant this alternative request, because it is an even more shameless violation of constitutional supremacy. It is also quite malicious.

Imagine a future President establishing gulags (labour camps) around the country for those exploitative capitalists to be herded into. Here they are worked to death for the benefit of the State. The National Prosecuting Authority – suspend your disbelief for but a moment – might go to court to prosecute the President for criminally violating various constitutional rights of South Africans.

In a surprise move, the President concedes to the court that yes, in fact, he is guilty of these rights violations, but asks that the court suspend the operation of its order or sentence until some future date. This will allow the President enough time to ensure all the capitalists have either fled South Africa or have been killed.

In other words, the court order, if granted, simply dresses the illegality and injustice of what is happening in a thin condemnatory cloak of technical judicial procedure, but allows it to stand. The logic is perverse.

Trick of procedure

Asking a court to nullify constitutional provisions by way of a trick of procedure is, in legalese, known as fraus legis (avoiding the law). When one attempts to achieve something indirectly which one cannot lawfully achieve directly, one is undermining the spirit and purpose of the law in question on a technicality. Legal technicalities, particularly in the Constitution, do not exist to be exploited in this manner. And no properly ‘constitutional’ court will ever allow such an abuse of process.

As we await the judgment of the Constitutional Court we must reflect on the importance of constitutionalism. There might always be a ‘good reason’ to disregard some or other constitutional institution or provision, but a constitutionalist would recognise that safeguarding and respecting the constitutional institution or provision will always represent the greater good. Long-term freedom and security depend upon it.

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.