Constitutional interpretation by the existing judiciary in South Africa: can new wine be successfully decanted into old bottles?

In a system of legislative supremacy little importance is attached to constitutional interpretation in the narrow sense, that is, the interpretation of the constitution as a statutory instrument. This paper first examines constitutional interpretation in South Africa before 1993 with respect to Bophuthatswana and Ciskei (countries with supreme constitutions embodying justiciable bills of rights after ‘independence’ in 1976 and 1981 respectively) and preindependence Namibia, which adopted an interim bill of rights in 1985. Then it turns to constitutional interpretation under the 1993 Constitution. The constitutional cases that have come before the courts in the first year or so after transition have dealt in the main with issues such as the right to a fair trial, or the right to bail. An analysis of cases that have dealt with the principles of constitutional interpretation shows that there are promising signs that positive constitutional interpretation in the new South Africa will not be the sole preserve of the Constitutional Court. The judgments which have emanated from the Supreme Court to date have, in general, raised expectations that the new wine can be poured into the old bottles without disastrous consequences for either. Notes, ref.

Title: Constitutional interpretation by the existing judiciary in South Africa: can new wine be successfully decanted into old bottles?
Author: Carpenter, Gretchen
Year: 1995
Periodical: The Comparative and International Law Journal of Southern Africa
Volume: 28
Issue: 3
Pages: 322-337
Language: English
Geographic term: South Africa
Abstract: In a system of legislative supremacy little importance is attached to constitutional interpretation in the narrow sense, that is, the interpretation of the constitution as a statutory instrument. This paper first examines constitutional interpretation in South Africa before 1993 with respect to Bophuthatswana and Ciskei (countries with supreme constitutions embodying justiciable bills of rights after ‘independence’ in 1976 and 1981 respectively) and preindependence Namibia, which adopted an interim bill of rights in 1985. Then it turns to constitutional interpretation under the 1993 Constitution. The constitutional cases that have come before the courts in the first year or so after transition have dealt in the main with issues such as the right to a fair trial, or the right to bail. An analysis of cases that have dealt with the principles of constitutional interpretation shows that there are promising signs that positive constitutional interpretation in the new South Africa will not be the sole preserve of the Constitutional Court. The judgments which have emanated from the Supreme Court to date have, in general, raised expectations that the new wine can be poured into the old bottles without disastrous consequences for either. Notes, ref.