oa Comparative and International Law Journal of Southern Africa - Working for progressive change in South African courts
|Article Title||Working for progressive change in South African courts|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Department of Criminal and Procedural Law, UNISA|
|Publication Date||Jul 1995|
|Pages||261 - 279|
|Keyword(s)||Bill of rights, Judges, Judicial decisions, Judicial interpretation, Legal positivism, Plain fact approach, Progressive social change and South Africa|
The introduction of a bill of rights and the consequent demise of parliamentary sovereignty demands a reassessment of judicial interpretation in South Africa. The current changes in South Africa are the result of mobilisation and organisation by the oppressed and disempowered majority, not the benevolence or altruism of the courts. The object of this article is not to provide an exhaustive account of the interpretative approach of South African judges during the apartheid era. This has already been done by better qualified scholars. Rather, it will focus on the two models of judicial interpretation applied in South Africa in the adjudication of apartheid laws. First, the 'plain fact' approach based on legal positivism, and second, the common law approach based on the writings of Ronald Dworkin. It will conclude that neither of these provides an adequate account of the role of South African law in progressive social struggle in either apartheid or post apartheid South Africa, and that promoting one or the other prescriptively has had very little impact on the decisions of the courts.
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