Abstract:
South Africa has a constitution that has been described, correctly, as an ‘international
law-friendly’ constitution. In the landmark decision in S v Makwanyane, the
Constitutional Court went to great lengths to show the court’s openness to international
law by, inter alia, declaring that the Constitution’s reference to international law included
both binding and non-binding international law. Yet the use of, and openness to,
international law by South African courts does not tell us about the approach to the
identification and interpretation of international law. In other words, the Constitution’s
openness to international law presupposes an ascertainment of the content of international
law, either through identification or interpretation. But are South African courts able to
use techniques, tools and methodology of international law to give content to it? The
purpose of this article is to consider this question. It considers this question through an
analysis of the decisions of South African courts relying on international law, particularly
those of the Constitutional Court. It looks at both old and new cases to make a
determination about the extent to which South African courts are faithful to the
techniques, tools and methodologies to identify and interpret international law.
