The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
It is true that the Constitutional Court can only hear cases raising constitutional matters or “issues connected with decisions on constitutional matters”. But since the Pharmaceutical case it is clear that almost any case can be fashioned into a constitutional case. Section 39(2), which requires courts when interpreting legislation or developing the common law to promote the spirit, purport and objects of the Bill of Rights, also provide much scope for innovative lawyers to take cases to Braamfontein.
But fear and loathing (and perhaps some ignorance) of the Constitution have prevented many lawyers from making the jurisdictional arguments to give their clients another shot at victory.
Perhaps all that is beginning to change. Recently it seems as if some lawyers are beginning to realise that the Constitution has now become the overarching framework within which to do legal business.
For example, in the case of Mohunram and Another v National Director of Public Prosecutions and Another being argued at the CC today, applicants make use of s 39(2) to argue that the application of the Prevention of Organised Crime Act to a specific set of facts is a Constitutional matter because it implicates the right to property.
Next Tuesday in the case of Van der Merwe v Taylor lawyers will argue that they should be granted leave to appeal to the CC despite having been refused leave to appeal to SCA because the rule of law requires it. This is because different lower courts gave different judgments on the same issue and the Constitutional Court has said that precedent is a Rule of Law – hence Constitutional – issue. In effect they are going to argue that where different lower courts give contradictory judgments the Rule of Law requires the CC to clear things up to provide legal certainty.
A long shot, yes, but interesting and innovative reasoning.
The problem is that the CC jurisprudence on jurisdiction is not coherent or predictable. Perhaps if more “peripheral” cases come to them, they will be forced to think these issues through and will have to produce some guidelines to help lawyers decide whether it is worth a shot to appeal to the CC.