South African constitutional law

Section 2 of the Constitution of 1996, the so-called supremacy clause, excludes parliamentary sovereignty and, in the extra-curial words of Justice Kate O'Regan, "shifts the foundations of our legal system".

[3] In this connection, Michelman cites Carmichele v Minister,[3] which described the Constitution as "not merely a formal document regulating public power" but instead as embodying "an objective, normative value system", within the "matrix" of which the common law must be developed.

[4] It originates in S v Mhlungu, in which Acting Justice Sydney Kentridge wrote in a minority opinion of his support for "the general principle that, where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.

In Zantsi, Justice President Chaskalson quoted approvingly from Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration, a United States Supreme Court case in which Justice Stanley Matthews advised never to "anticipate a question of constitutional law in advance of the necessity of deciding it" or "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied".

[vi]: 5–7 For Iain Currie and Johan de Waal, the principle of avoidance ensures that courts do not create a "constitutional straitjacket" which unnecessarily prohibits the political branches of government from interpreting and developing the law.

[6] However, the principle of avoidance – especially Zantsi's broader formulation of it – has also been linked to more general and more "pernicious" practices of judicial restraint,[7] especially in respect of the courts' putative reluctance to develop jurisprudence on the content of socioeconomic rights.

[vii]: 53 The Constitutional Court first articulated the subsidiarity principle clearly in SANDU v Minister of Defence, in which it held unanimously that, per Justice O'Regan, "a litigant who seeks to assert his or her right to engage in collective bargaining under section 23(5) should in the first place base his or her case on any legislation enacted to regulate the right, not on section 23(5)".

[vii]: 166 Some analyses link the subsidiarity principle to the avoidance principle as another instantiation, under du Plessis's adjudicative subsidiarity, of the general norm that "a court should not protect a constitutional right by way of a direct validity attack or by way of a direct constitutional remedy before considering whether the legislation or common law in question could be interpreted in a constitution-conforming and -confirming way".

[10][12] In his minority opinion in My Vote Counts, Justice Cameron himself implied support for this view, suggesting that the shared underlying premise is that, "resort to constitutional rights and values may [not] be freewheeling or haphazard.