|dc.contributor.author||Du Plessis, Lourens||
|dc.identifier.citation||Van Plessis, L. 2012. Die wonder van grondwetmatige Afrikaans. Tydskrif vir geesteswetenskappe, 52(3):337-351. [http://www.scielo.org.za/scielo.php?script=sci_serial&pid=0041-4751&lng=en]||en_US
|dc.description.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
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
|dc.publisher||Suid-Afrikaanse Akademie vir Wetenskap en Kuns||en_US
|dc.subject||constitution of the Republic of South Africa||en_US
|dc.subject||interpretation in conformity with the Constitution||en_US
|dc.subject||presumption of constitutionality||en_US
|dc.subject||separation of powers||en_US
|dc.subject||subsidiary constitutional legislation||en_US
|dc.title||Die wonder van grondwetmatige Afrikaans||en_US
|dc.title.alternative||The wonder of constitutionalist Afrikaans||en_US
|dc.contributor.researchID||10102264 - Du Plessis, Lourens Marthinus||