Die wonder van grondwetmatige Afrikaans

Abstract

This article is about the well-being of Afrikaans as a constitutionalist language. The adjective “constitutionalist” is meant to be a translation of the Afrikaans “grondwetmatig” as opposed to “constitutional” which is the English word for “grondwetlik”. The question inspiring this contribution is whether the larger contours as well as the finer nuances of constitutionalist democracy can successfully be verbalised in Afrikaans. The possibility is considered that Afrikaans as potentially a language of constitutionally democratic discourse might have suffered irreparable damage as a consequence of its close association with Apartheid, but the author gives short shrift to this misgiving pointing out that languages such as English and German that were also “oppressors’ languages” some time in history, are nowadays very adequate and eminently respectable languages of constitutionaldemocratic discourse. During the prevalence of a Westminster system in a pre-democratic South Africa Afrikaans was a disadvantaged constitutional language compared to, for instance, English. The latter lent direct access to the escalating post-World War II discourse on human rights. The question thus is whether Afrikaans has (or can develop) a constitutional or, more particularly, a constitutionalist register. The author turns to constitutional literature and jurisprudence to look for examples of how Afrikaans can be relied on to give creative expression to constitutionally democratic concepts, ideas and principles. He points out that the Constitution is a genre text, unique as supreme law, but sharing certain attributes with other enacted law-texts such as statutes. All of these texts should, for instance, be respected as products of legislative action meant to be of effect. To read and apply such texts is more like performing music than like reading a newspaper. This process is adequately expressed by the Afrikaans terminology “vertolk(-ing)” which recognises that elements of an interpreter’s own personality and skill go into the process of interpretation and are reflected in the interpretive outcome. In the English language “construction” probably verbalises the process more accurately and adequately than “interpretation”. The author proceeds to explain why, in certain instances where the term “grondwetlikheid” is usually used (in Afrikaans), he prefers the term “grondwetmatigheid” instead. He also reflects on the possible meanings of “constitutionalism” and the consequences of labelling the constitutional dispensation in South Africa since 1994 with the tag of “constitutionalism”. The second part of the article deals with the consequences of constitutional supremacy and the concomitant need for judicial self-restraint. It is shown that section 172(1)(a) of the Constitution read with section 2 provides for the constitutional review of legislation and administrative action in a rather peremptory vein. Section 172(1)(b), however, leaves room for the mitigation of the absoluteness of section 172(1)(a) by authorising any court order which is just and equitable. Specific orders in this category (explicitly mentioned in the section) are orders limiting the retrospective effect of declarations of invalidity or suspending the effect of such declarations in order to give a legislature or organ of the executive the opportunity to rectify the unconstitutional state of affairs complained of. This result can also be achieved by, for instance, severing unconstitutional words and phrases from a text and striking them down or by reading words and phrases into an impugned provision in order to render it constitutional thus safeguarding them against annulment. Various interpretive strategies commensurate with judicial self-restraint are then discussed. The first of these is the interpretation of statutes in conformity with the Constitution which can take the form of either a restrictive or an extensive reading of a statutory provision in the light of the Constitution and its demands. It is pointed out that this reading strategy is to be distinguished from reading in which a court may order as a form of relief in terms of section 172(1)(b) of the Constitution. Subsidiarity, another strategy commensurate with judicial self-restraint, is also discussed. Subsidiarity mainly has to do with deciding on an appropriate forum to decide a case (jurisdictional subsidiarity) or choosing an appropriate legal norm to resolve an issue (adjudicative subsidiarity). It is pointed out that subsidiary constitutional legislation (giving detailed and concrete effect to provisions of the Constitution) has in recent years played an increasingly important role to help put constitutional issues on the agendas of judicial and political discourse. Some observations are also made about how a constitutional neologism, co-operative government, can serve to induce self-restraint in the actions of the various arms of government (legislative, executive and judicial) in the national, provincial and local spheres. The author concludes with the observation that the speakers of South Africa’s eleven official languages have a duty to explore the potential of their own language as constitutionalist language not just for the sake of the languages themselves, but also to preserve and promote the treasure of constitutionalism