Department of Public Law

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‘‘Subsidiarity’’: What's in the name for constitutional interpretation and adjudication?
(Juta Law Publishing, 2006-02) Du Plessis, L. M.
INTRODUCTION: ‘‘I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.’’ This seemingly unspectacular dictum comes from the minority judgment in the controversial Mhlungu case, one of the earliest judgments of the South African Constitutional Court. Though it is not often cited (both in the literature and the case law) the said dictum seems to articulate a ‘‘principle’’ of considerable significance. The purpose of this article is to show that this dictum and the ‘‘principle’’ to which it refers are commensurate with and indeed a verbalisation of the notion of subsidiarity which, subject to caveats, has a constructive role to play in constitutional interpretation and adjudication. It will moreover be argued that (and shown why) it is desirable to name (and thereby explicitly recognise) the hitherto unnamed ‘‘Mhlungu principle’’ as an instance of adjudicative subsidiarity, and to distinguish it from other forms of subsidiarity which are also of interpretive and adjudicative significance.