Rainbow Jurisprudence
![handle is hein.journals/soafjhr12 and id is 11 raw text is: RAINBOW JURISPRUDENCE
ALFRED COCKRELL*
'Yet it remains to ask the hardest questions. Which values.., qualify as sufficiently
important or fundamental or whathaveyou to be vindicated by the Court against other
values affirmed by legislative acts? And how is the Court to evolve and apply them?...
[H]ow are other values found and applied, and what weights are assigned to them when
they come in conflict with competing values or interests?
I INTRODUCTION
In the first year of its existence the Constitutional Court has been faced
with the task of creating a theory of constitutional review from nothing.
Adopting Ronald Dworkin's well-known metaphor of the chain novel,2
we might say that the past year has presented an opportunity for the
Constitutional Court to write the first chapter in the great South African
novel of constitutional review. The unfolding plot has proved so
intriguing that the judgments of the Constitutional Court have been read
with avid interest by almost all members of the legal profession as soon
as they appeared on the streets (or, more likely, the internet).3 The
detailed record of the Constitutional Court in the judgments which have
been delivered over this period is a matter which is dealt with by other
contributors to the present volume. My aim in this article is a more
general one, inasmuch as I hope to provide an assessment of the
jurisprudence of the Constitutional Court as contained in the judgments
which were handed down in the course of 1995.4 The aim, in other
words, is to tease out certain general themes which have characterized
the first chapter in the novel of South African constitutional review, and
* BA LLB (Cape Town) MA (Oxon). Associate Professor, Department of Private Law, University
of Cape Town. Associate Academic Member of the Cape Bar. I am grateful to Eduard Fagan,
Hugh Corder, Dennis Davis and Anton Fagan who found time to read and comment upon earlier
versions of this paper. Thanks also to Laurel Angus and Melanie Thomas who kindly supplied
me with copies of some of the unreported Constitutional Court judgments.
I Alexander M Bickel The Least Dangerous Branch 2 ed (1986) 55.
2 Ronald Dworkin Law's Empire (1986) 228ff.
3 Not all members of the public proved to be as well informed as members of the legal profession.
Confusion on the part of laypersons was typified by one letter-writer to a Cape Town newspaper
who bemoaned the fact that after three months of hearing evidence and argument, the
Constitutional Court had taken only one minute and 45 seconds to give its judgment! (I have
been unable to locate this letter, but it is referred to by Hugh Corder 'Constitution gets too little
press' Mail and Guardian 14-20 July 1995 at 27.)
4 References in this article to 'the first year of existence of the Constitutional Court' or 'the period
under review' are to the 1995 calendar year. No consideration will be given to judgments of the
Constitutional Court which were handed down after I January 1996.](ViewImageLocal?handle=hein.journals/soafjhr12&div=9&collection=&method=preview&ext=.png&size=3)
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