THE CASE OF THE SPELUNCEAN EXPLORERS IN THE SOUTH AFRICAN CONSTITUTIONAL COURT

Abstract

The South African legal profession is dealing with a hermeneutic turn in the way in which meaning of legislative provisions is discovered. Meaning is no longer discovered solely through the reading of the text of a provision, but in dealing with the textual environment of which that provision forms part. The article explores some of the interpretative considerations that the Constitutional Court would have to have regard to if it were called upon to judge a case similar to that of Fuller’s “The Case of the Speluncean Explorers” – a fictionalized judgment set in the year 4300 and decided by the Supreme Court of Newgarth, but written by Fuller in 1949. The article draws a comparison between the interpretative approach adopted by the Constitutional Court and that of the five justices in the fictional case. Additionally, the article considers the phenomenon of the “broadening of the spectre of interpreters” which is a consequence of the approach adopted by the Constitutional Court, and asks what role, if any, public opinion should play in the interpretation of statutes. The article finds that these considerations should play a role in the interpretation of statutes in addition to other interpretative factors such as the text, history, purpose, context and values inherent to the South African legal order. The article concludes that interpretive debate in South Africa has failed in any real way to move beyond debates already dominant when the fictionalized judgment was written in 1949. It also reiterates the warning to the South African judiciary in particular, and the South African legal order in general, that allegiance to literalist and positivist traditional canons of statutory interpretation poses the risk of impeding the contribution which can be made by the judiciary to the transformation of South African society.