n Stellenbosch Law Review = Stellenbosch Regstydskrif - Section 39(2) and shadows of history over the post-apartheid constitution : [Discussion of [2009] 1 All SA 54 (N) and [2009] ZASCA 1]




This discussion of [2009] 1 All SA 54 (N) and [2009] ZASCA 1 commences with a brief reconstruction of the judgment by Nicholson J and the critical response by Harms DP on appeal. After identifying the main legal and jurisprudential differences between the two judgments, it explores how history influenced the way in which the purpose of the review provision was defined in each judgment. A key question that arises from this exploration is whether section 39(2) of the Constitution should be understood as a means of compelling a process of historical contextualisation and abstraction of legal meaning, or rather as a means of restricting this process. The aim of the discussion is not to answer this question conclusively but rather to highlight the tension between openness and closure that it inevitably involves.


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