1887

n South African Law Journal - The secondary role of the spirit, purport and objects of the Bill of Rights in the common law's development

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Abstract

South African courts have always had the power to develop the common law. They have done so by overruling and interpreting existing rules, and by adding brand new ones. Previously, there were two kinds of reason for this kind of common-law development: justice and the common law itself. The South African Constitution has explicitly added a third kind of reason, namely the rights in the Bill of Rights. According to the South African Constitutional Court, the Constitution has by implication added a fourth kind of reason too, namely the spirit, purport and objects of the Bill of Rights.


This article argues that the Constitutional Court is mistaken. The Constitution certainly gives the spirit, purport and objects of the Bill of Rights a role in the common law's development. But the role is a more limited one than the Constitutional Court supposes. Contrary to the Constitutional Court's assertion, the spirit, purport and objects of the Bill of Rights are not meant to serve as independent reasons for developing the common law, alongside justice, the common law and the rights in the Bill of Rights. Instead, they are to serve only as tie-breaker reasons when the rights in the Bill of Rights, justice and the rules of the common law are indeterminate. That is, when the rights in the Bill of Rights, justice and the rules of the common law justify not only one way, but rather several alternative ways, of developing the common law, the spirit, purport and objects of the Bill of Rights may provide reasons for preferring one of those ways of developing the common law over the others.

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/content/ju_salj/127/4/EJC53945
2010-01-01
2016-12-08
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