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).
