Research Articles (Public Law)

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Albie Sachs and the politics of interpretation
(UNISA Press, 2010-01) Botha, Henk
The politics of interpretation continues to haunt judges and legal theorists. Ever since the legal realists launched their attack on the formalist belief that general legal rules can generate determinate answers to concrete legal questions, constitutional thought has been obsessed with the spectre of unelected judges thwarting the will of legislative majorities in the name of their own, subjective interpretations of constitutional provisions. For generations of constitutional scholars, attempting to show how judges can avoid substituting their own views on policy issues for those of legislatures, and/or how constitutional adjudication can be placed on a more secure footing has been a consuming passion.
Beyond sexual binaries? the German Federal Constitutional Court and the rights of intersex people
(North-West University, Faculty of Law, 2018) Botha, Henk
In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.
Dignity, freedom and the post-apartheid legal order : the critical jurisprudence of Laurie Ackermann by A.J. Barnard-Naudé, D. Cornell and F. du Bois (eds.) : book review
(Juta and Company Pty, 2010-01) Botha, Henk
This collection of essays had its origin in a conference that was held at the University of Cape Town in July 2007 to pay tribute to the constitutional jurisprudence of Laurie Ackermann. It contains the papers delivered at the conference, together with the Ben Beinart Memorial Lecture delivered by Jeremy Waldron a day earlier. Exploring, celebrating and critiquing key aspects of Justice Ackermann’s contribution to the development of the Constitutional Court’s jurisprudence, the volume manages to transcend the strictures of both the Festschrift and conference proceedings format and becomes an extensive reflection on the transformative potential of South Africa’s Constitution and of constitutionalism in general.
Equality, dignity, and the politics of interpretation : post-apartheid fragments : law, politics and critique
(VerLoren Van Themaat Centre, 2004-01) Botha, Henk; Public Law
The equality standard articulated by South Africa's Constitutional Court is premised on a substantive concept of equality, and purports to be sensitive to context and mindful of past patterns of discrimination, systemic inequality and the role of harmful social stereotypes. However, the emancipatory potential of the Court's general approach to equality is not always reflected in its judgments. In fact, the reasoning in some of these judgments strikes me as formalistic and uncritical of existing power relations. The disjuncture between the constitutional promise and the reality of the enforcement of the equality guarantee, is a recurring theme in legal scholarship. According to some authors, the dignity-based approach of the Constitutional Court lies at the heart of the problem. In their view, the notion of dignity is not only completely indeterminate and thus allows judges to give almost any content to it, but the focus on dignity (rather than disadvantage) also results in an overly individualistic emphasis, which tends to blind judges to systemic inequality and material disadvantage. Others have countered that the notion of human dignity is not as devoid of meaning as claimed by the critics, and that there is nothing inherently individualistic about it.
Fundamental rights and democratic contestation : reflections on freedom of assembly in an unequal society
(Faculty of Law, University of the Western Cape, 2017) Botha, Henk
In this article, I argue that the impoverished conception of freedom of assembly displayed in legislation and case law, and its neglect in academic literature, has to do with a set of dominant understandings of democracy. These understandings are structured in terms of certain hierarchical oppositions: between institutional and extra-institutional politics; between representative and direct democracy; between rational deliberation and political antagonism; between reason and affect; and between speech and action. I argue that these understandings, together with the narratives which help to sustain them, are problematic for a number of reasons: first, they do not pay sufficient attention to forms of power that are deeply ingrained in societal structures; secondly, they underestimate the constitutive role of conflict and antagonism in political life; and thirdly, they underplay the role of affects and passions in democratic struggles. Through my critique of these assumptions and understandings, I attempt to develop a more adequate understanding of the relationship between democracy and the right to assemble and demonstrate.
Human dignity : lodestar for equality in South Africa
(Juta and Company (Pty) Ltd, 2014-01) Botha, Henk
Laurie Ackermann was one of the first constitutional lawyers to develop a distinct substantive understanding of the Constitution of the Republic of South Africa, 1996. This vision, already evident from some of the constitutional court's early judgments, is marked by a strong libertarian bent and a Kantian interpretation of the values of human dignity, equality and freedom. Closely allied to his normative position on these issues are other aspects of his judicial philosophy, such as his belief in and commitment to the development of a rigorous judicial methodology and his conviction that a sustained engagement with comparative law is essential for developing an adequate understanding of South Africa's constitution. Not surprisingly, these themes and predilections are at the heart of this book, in which the author defends and works out the implications of the constitutional court's choice for a dignity-based interpretation of the right to equality.
Human dignity in comparative perspective
(Juta Law Publishing, 2009-02) Botha, Henk
This article compares the role of human dignity in constitutional interpretation in Germany and South Africa. Both countries have embraced dignity as a direct response to a troubled and totalitarian past. Nowadays dignity features as a supreme value, an interpretive Leitmotiv, a justiciable right, an objective constitutional norm, and a guide to the resolution of value conflicts. There are, however, important differences in the way dignity has shaped these countries' constitutional jurisprudence. A study of the relevant similarities and differences provides an important occasion for critical reflection on the possibilities and limits of a dignity-based jurisprudence. The article concludes with tentative observations on the capacity of dignity to guide constitutional decision-making.
Metaphoric reasoning and transformative constitutionalism (part 2)
(Juta Law, 2003-01) Botha, Henk
INTRODUCTION TO 6: I have argued that the apartheid logic of separation and exclusivity was structured in terms of the container metaphor. Racial and other identities and physical spaces were thought to have clear boundaries, which separated white from black, men from women and owners from non-owners. Legal concepts and categories were thought to mirror reality. It was, for instance, believed that race and gender referred to natural, immutable characteristics; that legal con- cepts such as property and contract could be defined in terms of essential attributes; that legal relationships were governed by scientific logic. This in- duced normative closure. Normative distinctions (eg between white and black, the public and private, the legislative and judicial functions, or ownership and other real rights) were treated as absolute and impenetrable boundaries. Nor- mative questions about the relation between different race groups or the dis- tribution of land were reduced to technical questions about the best way to give effect to pre-existing boundaries.
Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 1 SA 925(A)
(VerLoren Van Themaat Centre, 1990-01) Botha, Henk
’n Mens kan verwag dat die oordrag van tradisionele owerheidsfunksies aan die private sektor toenem end vrae sal laat ontstaan oor die verhouding tussen die privaat- en publiekreg. Die onderhawige saak verdien aandag, om dat dit een van die eerste sake is waarin privadsering ter sprake gekom het.
Representing the poor: Law, poverty and democracy
(JUTA, 2011) Botha, Henk
ENGLISH ABSTRACT : The article juxtaposes two judicial understandings of democracy in relation to their implications for the poor. Some constitutional judgments conceive of democracy in formal terms as the capacity of duly elected legislatures to enact law within their constitutional area of competence. These judgments are loath to impose requirements that would guarantee the participatory nature of the lawmaking process, and reluctant to raise questions about the ruling party’s use of their numerical majority to stifle political opposition or shield officials from legislative oversight. Other judgments conceive of democracy in dialogic, participatory and pluralistic terms. It is argued that this second judicial conception of democracy is better placed to challenge laws and practices which effectively insulate social and political power from mechanisms designed to promote democratic accountability, or allow the wealthy and powerful to pass off their particular interests as the common good. This vision of democracy needs to be supplemented with a better understanding of the ways in which electoral rules and the party system tend to intersect with inequality, corruption and patronage to entrench the exclusion and silencing of the poor.
Rethinking the right to vote
(Juta Law Publishing, 2015-08) Botha, Henk
South African constitutional scholars have been puzzling for some time over a basic tension in the Constitutional Court’s voting rights jurisprudence. While some of its judgments show a commitment to a vigorous defence and enforcement of an inclusive, egalitarian and participatory vision of democracy and an active notion of citizenship, others appear to be characterised by a deferential posture and a shallow conception of democracy. The court’s emphasis on the centrality of the right to vote to dignity and democratic citizenship and its endorsement of the voting rights of marginalised categories of persons such as prisoners is seemingly contradicted by its willingness, in cases like New National Party of South Africa v The Government of the Republic of South Africa (“NNP”) and United Democratic Movement v President of the Republic of South Africa (1) (“UDM”),3 to defer to legislative choices. The deferential posture struck in these cases sits uneasily with the widely shared assumption that democracy itself requires judicial vigilance in the face of electoral rules that tend to thwart electoral competition and distort the representative nature of government. It is also at odds with later judgments dealing with political rights other than the right to vote, in which a robust, participatory vision of democracy formed the basis for successful challenges to the validity of conduct or legislation.
The rights of foreigners : dignity, citizenship and the right to have rights
(Juta Law, 2013-01) Botha, Henk
This article examines the rights of foreign nationals in view of Hannah Arendt's thesis that human rights amount to little when severed from the rights of members of a concrete political community. It considers three different theoretical attempts to come to terms with Arendt's challenge and to make sense of her reference to a 'right to have rights'. Drawing upon these theoretical perspectives, the article analyses the judicial reliance on the constitutional value of human dignity to mediate the tension between the rights of foreigners and the sovereign power of a political community to engage in exclusionary practices. In particular, it explores critically the possibilities and limits of the courts' dignity-based jurisprudence with reference to the central but unstable distinction between the dignity of man and the dignity of the citizen.
The Selfless Constitution : experimentalism and flourishing as foundations of South Africa's Basic Law
(Stellenbosch Law Review, 2014-01) Botha, Henk
Stu Woolman's new book is an ambitious work, which expounds a theory of constitutionalism which breaks with traditional understandings of the self, the social and constitutional law, and seeks to reconceive them in a number of ways. This it does by drawing on a wide variety of scientific fields, theoretical endeavours, analogies and metaphors. To mention but a few examples: global neuronal workspace theory and experimental philosophy are enlisted to problematise and point beyond metaphysical conceptions of selfhood and individual freedom; the notions of feedback mechanisms, choice architecture and social capital are employed to rethink the social and the possibility of social change; and concepts such as shared constitutional interpretation and participatory bubbles are developed as a way out of the stale oppositions that tend to characterise constitutional thought. Throughout, the author takes great pains to relate these diverse concepts and theories to each other, and to weave the different strands into a coherent and defensible theory of constitutional adjudication.
The selfless constitution : experimentalism and flourishing as foundations of South Africa's basic law, S. Woolman : book review
(Juta Law, 2014-01) Botha, Henk
Stu Woolman's new book is an ambitious work, which expounds a theory of constitutionalism which breaks with traditional understandings of the self, the social and constitutional law, and seeks to reconceive them in a number of ways. This it does by drawing on a wide variety of scientific fields, theoretical endeavours, analogies and metaphors. To mention but a few examples: global neuronal workspace theory and experimental philosophy are enlisted to problematise and point beyond metaphysical conceptions of selfhood and individual freedom; the notions of feedback mechanisms, choice architecture and social capital are employed to rethink the social and the possibility of social change; and concepts such as shared constitutional interpretation and participatory bubbles are developed as a way out of the stale oppositions that tend to characterise constitutional thought. Throughout, the author takes great pains to relate these diverse concepts and theories to each other, and to weave the different strands into a coherent and defensible theory of constitutional adjudication.

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