The Way Forward
Edited by Michael Faure and André van der Walt
Chapter 6: Beyond Parochialism? Transnational Contextualization in Constitutional Interpretation in South Africa (with Particular Reference to Jurisprudence of the Constitutional Court)
1 Lourens du Plessis 1 INTRODUCTORY OBSERVATIONS AND EXPLANATIONS According to section 39(1) of the Constitution of the Republic of South Africa, 1996, ‘[w]hen interpreting the Bill of Rights, a court, tribunal or forum … must consider international law’ (section 39(1)(b)) and ‘may consider foreign law’ (section 39(1)(c)). These provisions acknowledge that the Bill of Rights, and the Constitution as a whole, is (also) embedded in a transnational reality beyond both the geographic and the legally and constitutionally defined precincts of ‘the Republic of South Africa’. The attention of judicial interpreters is moreover drawn, with supreme constitutional authority, to this transnational context, requiring international law and allowing foreign law to be considered in Bill of Rights (and constitutional) interpretation. The 1996 Constitution (also referred to as ‘the final Constitution’ – or simply ‘the Constitution’) entered into force on 4 February 1997 and was preceded by – and adopted in terms of the provisions of – the Constitution of the Republic of South Africa, Act 200 of 1993 (also referred to as the ‘transitional’ or ‘interim Constitution’), which, with its commencement on 27 April 1994, introduced constitutional democracy to South Africa. Section 35(1) of this Constitution 1 A thoroughly reworked and extended version of a presentation entitled ‘Beyond Parochialism: International Law and Transnational Learning in Constitutional Interpretation’ at a Research Workshop on ‘Lawmaking and Development of Law in a Globalized World’ presented by the Faculty of Law, University of Stellenbosch, the Ius Commune Research School and Trinity College,...
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