(An assessment of South African Courts' approach to the interpretation of bills of rights)

ABSTRACT

Chapter 3 of South Africa's transitional constitution is a bill of rights which takes its cue from similar instruments elsewhere in the world. It is beyond dispute that South Africa's final constitution will also contain a bill of rights. This article assesses the South African judiciary's ability and readiness, generally speaking, to uphold the values enshrined in a bill of fundamental rights. It is done with reference to the courts’ hitherto manifested approach to constitutional interpretation. A bill of rights judicialises politics in that it lays down basic ‘rules of the game’ to which the ‘politically active’ are kept by the judiciary as an ‘independent referee’. However, it also politicises the judiciary to the extent that it requires the ‘referee’ itself to display and practice definitive political skills (albeit of a ‘special kind'). Focusing on this interaction between the judicialisation of politics and the politicisation of the judiciary, the record of courts in South Africa and Bophuthatswana in respect of the interpretation of bills of rights is reviewed. This is done firstly with reference to judges’ professed reluctance to deal with ‘policy issues’. Secondly, it is made clear that the courts’ traditional literalist‐cum‐intentionalist approach to the interpretation of statutes holds potentially devastating consequences for bill‐of‐rights interpretation. However, in conclusion it is observed that in view of recent developments — also in neighbouring jurisdictions – there are grounds for cautious optimism that the judiciary will eventually be a successful guardian of the constitution.