oa Comparative and International Law Journal of Southern Africa - Constitutional interpretation by the existing judiciary in South Africa - can new wine be successfully decanted into old bottles?

Volume 28, Issue 3
  • ISSN : 0010-4051



The constitution, as the lex jundamentalis of the South African legal order, contains the norms by which all other legislation must be measured. Parliament is no longer supreme; it can no longer pass any legislation without having its authority called into question. Thus it is not only the constitution that must be purposively interpreted; when other legislation is being interpreted, the first enquiry must be what the purpose or objective of the legislation is, so that it can be established whether such purpose is in keeping with the constitution. Whatever the real or imagined intention of the legislature was when the legislation was adopted, it now becomes irrelevant; the only criterion is consistency with the constitution. It is clear that the courts' task will not be an easy one. Friedman descriptionbed it in Nyamakazi as 'awesome and onerous'. The politicisation of the judiciary is a real danger, and the courts must guard against the temptation to become super-legislatures.

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