In defence of the Constitutional Court : human rights and the South African common law

Abstract

Section 39(2) of the South African Constitution is one of the primary tools through which the Constitution is intended to do its revolutionary work, by requiring that all legislation, common law and customary law be interpreted and developed in accordance with the spirit, purport and objects of the Bill of Rights. As a result of the Constitutional Court’s interpretation of that section, the Constitution has had and will continue to have a rightly extensive and transformative impact on the law governing relations between private persons.Despite that impact, or perhaps because of that impact, certain commentators have called that interpretation into question. In this article, we explain that the South African Constitution ought to be interpreted holistically and teleologically. Once the nature of constitutional interpretation is properly understood, and once section 39(2) is then viewed through the appropriate interpretive lens, it will be seen that courts are indeed mandated to develop the common law, of their own accord if need be, in each case that comes before them. Furthermore, it will be seen that that development must promote the values of the Constitution as a whole (and not just of the Bill of Rights).