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124 S. African L.J. 762 (2007)
The Amazing, Vanishing Bill of Rights

handle is hein.journals/soaf124 and id is 770 raw text is: THE AMAZING, VANISHING BILL OF RIGHTS STU WOOLMAN* Associate Professor, University of Pretoria 'I think I should understand that better, if I had it written down: but I can't quite follow it as you say it.' Lewis Carroll, Alice in Wonderland INTRODUCTION: BAD THINGS COME IN THREES If you had taken a poll a year ago, a demographically representative cohort of educated Constitutional Court watchers would have told you that no more than a clutch of cases were both badly reasoned and wrongly decided. The troika of Prince, Jordan and Volks would occupy the top three spots on that very short hit-list: and they would, again, be viewed as aberrations in a twelve-year span of good - if very sometimes thinly reasoned - judgments. It was a good run while it lasted, For in the span of three months this year, the Constitutional Court has handed down at least three decisions that have the chattering classes chattering: Barkhuizen,' Masiya2 and NM.3 All three majority decisions reach troubling conclusions through murky, if not tendentious, lines of reasoning. My assessment, for what its worth, is that a penchant for outcome-based decision-making, and a concomitant lack of analytical rigour, has finally caught up with the Constitutional Court. The purpose of this article is to demonstrate that the court's current process of (public) reasoning - its preferred mode of analysis - has genuinely deleterious consequences. Of * BA (Hons) (Wesleyan) JD MA (Columbia) PhD (Pretoria). I would like to thank the following persons: Theunis Roux, and my colleagues at SAIFAC, provided the stimulating conversation and the vibrant environment that gave rise to the ideas in this paper. lain Currie paid careful attention to an earlier draft and in many instances saved me from errors both large and small. Michael Bishop, Solomon Dersso, Patrick Lenta, Karin van Marle, Danie Brand, Frank Michelman, Dennis Davis, Cora Hoexter, Danie Visser and my anonymous referees offered interventions that have improved the quality of this work. The remaining errors in argument and infelicities in style remain mine alone. ' Barkhuizen v Napier 2007 (7) BCLR 691 (CC) ('Barkhuizen'). 2 Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC), 2007 (8) BCLR 827 (CC) ('Masiya'). ' NMv Smith 2007 (5) SA250 (CC), 2007 (7) BCLR 751 (CC) ('NM).

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