‘THE PAST IS UNPREDICTABLE’: SOUTH AFRICAN HISTORY AND THE UNDERSTANDING OF THE CONSTITUTION
Professor Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law, University of Cape Town
South Africa’s Constitution contains a list of rights protecting the interests of individuals. Formulated in an open-ended way, their scope and content are not always apparent. For example, section 9(3) prohibits ‘unfair discrimination’ on any ground, but when, for instance, would affirmative action based on race be fair and when not? When would it be fair to discriminate against people with disabilities, pensioners, men, or people who used to be classified ‘white’ during apartheid, and when not? Judges, who have their own personal views and beliefs, must determine the scope and content of the rights by interpreting them. For an interpretation to be credible, and not seen as based purely on political and personal beliefs, judges often rely on ‘objective’ criteria. This three lecture
course will look at how the Constitutional Court relies on South Africa’s history as one such ‘objective’ criterion. Taking its title from a remark made by Evita Bezuidenhout that ‘the future is certain – it’s the past that is unpredictable’, the course will illustrate that the manner in which the court understands South Africa’s history partly determines how it interprets the scope and content of the right. The right to equality and the question of affirmative action will be the points of departure, to assist understanding how South Africa’s particular history influences the court’s understanding of various human rights.
1. History and the interpretation of the Bill of Rights
2. History and non-discrimination: race, gender and sexual orientation
3. On affirmative action
De Vos, P. 2012. The past is unpredictable: race, redress and remembrance in the South African Constitution. South African Law Journal, 129, 73–103. (Read Prof de Vos's inaugural lecture of the same title here)
De Vos, P. 2012. Why Historical Context Still Matters in South Africa. Available here.
Ngcukaitobi, T. 2013. Equality. In The Bill of Rights Handbook. 6th ed. I. Currie et al. Eds. Cape Town: Juta. 209–249.
Course code: 1046
Date & time: Monday 27–Wednesday 29 January 7.30 pm