THE INFLUENCE OF FOREIGN JUDGMENTS ON THE DEVELOPMENT OF POST-APARTHEID CONSTITUTIONAL LAW IN SOUTH AFRICA: JUDICIAL LAW-MAKING IN ACTION?
Theoretically, law is capable of dealing with every concrete situation that may arise, a fi ction that must be maintained at all costs if the division between the judiciary and legislature is not to break down. In fact, every system is incomplete in coverage, and the gaps have to be fi lled in as they are revealed, by judicial law-making.
Abstract: Post-apartheid South African courts have wide law-making powers when interpreting common law, customary law and legislation. They have been empowered by a progressive Constitution that “embodies a new understanding of judge-made law that is more faithful to reality and charged with implications for South Africa’s constitutional project [Davis and Klare, “Transformative Constitutionalism and the Common and Customary Law” (2010) South African Journal on Human Rights 402]”. International and foreign laws have been of great value to the development of post-apartheid constitutional law, especially foreign case law. Empirical results reveal that the South African Constitutional Court has cited foreign cases more than 3,000 times in almost half of its decisions handed down from 1995 to 2017. This contribution analyses some of the data with a view to determine the infl uence those foreign cases had on the development of post-apartheid constitutional law in South Africa.
