Book Review: Democracy and Deliberation: Transformation and the South African Legal Order

Abstract

Let me begin by saying something about the author. A graduate of the University of Cape Town and Cambridge, Dennis Davis joined the faculty of the University of Cape Town (UCT) at a young age to become a law professor at UCT, the University of the Witwatersrand in Johannesburg, and again at UCT, before being appointed as a judge in the High Court of South Africa (Cape Provincial Division). As an academic, his field of study was mainly confined to the commercial law areas, but perhaps his main interests exceeded those confines. He was particularly articulate in his fierce opposition to racial and gender discrimination. As a judge, he has handed down some remarkable judgments, including the one in National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs (1999; declaring a section in the Alien Control Act of 1991 unconstitutional because it discriminated against same-sex life partners and thus discriminated against a category of persons on the basis of their sexual orientation) and Grootboom v. Oostenberg Municipality & others (2000; a landmark decision on socioeconomic rights, upholding the right to shelter of members of a squatters community and ordering the appropriate government authorities to provide alternative accommodation to the squatters as a precondition for their eviction from the property they unlawfully occupied).Davis is quite a congenial person, speaks well, was time and again nominated by students of Wits University as the best teacher in the law school, and extended his overall notoriety by hosting a popular talk show on South African television. But Davis could also be confrontational and quite vicious in his unconcealed condemnation of points of view and persons who crossed swords with him-or rather, with whom he crossed swords-on matters of political or moral principle. All of these characteristics of a truly remarkable person filter through in Democracy and Deliberation.The book is essentially focused on constitutional interpretation and application following the radical transformation of South Africa from a racist oligarchy to a democracy in 1994. An introductory chapter gives a brief outline of (some elements) of the constitution-making process and lays the foundation for the subsequent critical survey of the role of the judiciary and academics in coming to terms with a new constitutional ethos and in reshaping the law to fit that ethos. A recurring theme emphasizes the interaction between politics and law and the influences of socioeconomic factors on law transformation; or, at least that is what the author argues ought to be, but is not always recognized as, the guiding lights of a truly new dispensation founded on the spirit-as recorded in the Constitution-of "an open and democratic society based on human dignity, equality and freedom."Under the heading of "Democracy and Integrity," the author identifies with the celebrated words of the late Etienne Mureinik describing the 1994 (interim) Constitution as "a bridge away from a culture of authority . . . to a culture of jus...