oa Constitutional Court Review - The role of transboundary dialogue : a response to Stephen Ellmann

Volume 2, Issue 1
  • ISSN : 2073-6215



The novelty of Ellmann's paper derives primarily from the fact that it moves beyond the separation of powers and counter-majoritarian based critiques and analyses that have dominated academic discourse about South African constitutional law. For instance, in the second edition of the , Woolman and Botha outline the multi-part structure of the fundamental rights analysis. The authors describe interpretation as characterised by a two-fold process: determining the meaning or the scope of a fundamental right followed by a determination of whether the right has been infringed. In most instances, a finding that the right has been limited leads to a third stage: limitations analysis. Under section 36, courts are, quite 'controversially', given the power to decide whether a democratically conceived law's infringement of a fundamental right indeed violates the Constitution or whether, in fact, the infringement of a right can be justified.

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