Charles Hughs, a former Chief Justice of the United States Supreme Court, once commented that “We are under the constitution, but the constitution is what the judges say it is…” This comment depicts the importance of judicial interpretation of Constitutions not only in South Africa, but around the world. I argue that the South African Constitution allows for the constant evolution of itself, through changes in interpretations, to best fit the current social needs of the society and promote transformation. This freedom of interpretation is constrained to limit the possibility of negative consequences due to inarticulate premises of the judicial interpreters with respect to matters of feeling, belief or conviction in the context surrounding the legal issue.
Constitutionalism provides certain structures for governance and attempts to legitimize the transfer of power from the people, to those elected to represent them through a fair democratic process. This legitimization of power, in the form of the general acceptance of democracy and rule of law, depicts constitutionalism as being applicable to the fight for individual freedoms . It can therefore be said that constitutionalism is more than the mere attempt to govern a society which cannot be said for the constitutions under colonial rule. The freedoms required by society can often change due to transformative events which give rise to new challenges while possibly eradicating old ones. This presents a need for the constitution to be interpreted in different ways to ensure that constitutional solutions are made. The act of judicial interpretation, which forms a branch of the law-making process , should therefore be guaranteed to align with the notion of the fight for freedom as per the understanding of constitutionalism. Through the democratic changes and introduction of constitutionalism, we attempted to transform from an authoritarism based culture to a culture in which justification is needed giving us a current innate capacity to ensure that constitutionalism is upheld affording an opportunity to resolve and prevent the reoccurrence of the injustices of our past. Prior to the constitutional democracy, when parliamentary sovereignty was exercised, South Africa had other constitutions which differed from the current one. These were merely acts of Parliament and not seen as the supreme law of the land. These constitutions were therefore interpreted in a similar method to other statutes at the time. The current Constitution, entrenched with the bill of rights, has to be respected and interpreted in a more embracing manner relative to ordinary statutes. These prior constitutions asserted parliamentary sovereignty allowing an abuse of power by the executives. This abuse of power ranged from passing any legislation that the government saw fit at the time, to an extreme case where a judge was prevented from continuing to act as a judge for ruling against the desires of the executive. These practices constituted a break in the doctrine of the separation of powers which allowed for the various atrocities of our past to be perpetrated. The abuse of power, committed by the pre-democratic South African executives, would not be allowed under the rule of the current constitution. …show more content…
The contrast of parliamentary sovereignty to constitutional sovereignty is vast with the latter aimed towards the protection of the individuals within the country and the former aimed at carrying out the desires of the minority in power. Under parliamentary sovereignty, the executive branch was above the law. In Ndlwana v Hofmeyr , we realise the pointlessness of questioning whether an act by a sovereign parliament is ultra vires or not, as one cannot question a power which has no limit. This portrays a system in which the legislature had little freedom to interpret the law in such a way as to protect the liberty of individuals. With the constitutional sovereignty which exists in South Africa today, not only do judges have the freedom to interpret the law in a positive manner for individuals, but they are bound to do so in the spirit, purport and objects of the Bill of Rights . The constraints imposed by the executives of the Apartheid governed South Africa not only made it difficult to interpret the law for the benefit of certain freedoms, but also made it difficult to review the law as judicial authority to do so was limited. The constitutional court was only established by the interim constitution meaning that
Constitutionalism provides certain structures for governance and attempts to legitimize the transfer of power from the people, to those elected to represent them through a fair democratic process. This legitimization of power, in the form of the general acceptance of democracy and rule of law, depicts constitutionalism as being applicable to the fight for individual freedoms . It can therefore be said that constitutionalism is more than the mere attempt to govern a society which cannot be said for the constitutions under colonial rule. The freedoms required by society can often change due to transformative events which give rise to new challenges while possibly eradicating old ones. This presents a need for the constitution to be interpreted in different ways to ensure that constitutional solutions are made. The act of judicial interpretation, which forms a branch of the law-making process , should therefore be guaranteed to align with the notion of the fight for freedom as per the understanding of constitutionalism. Through the democratic changes and introduction of constitutionalism, we attempted to transform from an authoritarism based culture to a culture in which justification is needed giving us a current innate capacity to ensure that constitutionalism is upheld affording an opportunity to resolve and prevent the reoccurrence of the injustices of our past. Prior to the constitutional democracy, when parliamentary sovereignty was exercised, South Africa had other constitutions which differed from the current one. These were merely acts of Parliament and not seen as the supreme law of the land. These constitutions were therefore interpreted in a similar method to other statutes at the time. The current Constitution, entrenched with the bill of rights, has to be respected and interpreted in a more embracing manner relative to ordinary statutes. These prior constitutions asserted parliamentary sovereignty allowing an abuse of power by the executives. This abuse of power ranged from passing any legislation that the government saw fit at the time, to an extreme case where a judge was prevented from continuing to act as a judge for ruling against the desires of the executive. These practices constituted a break in the doctrine of the separation of powers which allowed for the various atrocities of our past to be perpetrated. The abuse of power, committed by the pre-democratic South African executives, would not be allowed under the rule of the current constitution. …show more content…
The contrast of parliamentary sovereignty to constitutional sovereignty is vast with the latter aimed towards the protection of the individuals within the country and the former aimed at carrying out the desires of the minority in power. Under parliamentary sovereignty, the executive branch was above the law. In Ndlwana v Hofmeyr , we realise the pointlessness of questioning whether an act by a sovereign parliament is ultra vires or not, as one cannot question a power which has no limit. This portrays a system in which the legislature had little freedom to interpret the law in such a way as to protect the liberty of individuals. With the constitutional sovereignty which exists in South Africa today, not only do judges have the freedom to interpret the law in a positive manner for individuals, but they are bound to do so in the spirit, purport and objects of the Bill of Rights . The constraints imposed by the executives of the Apartheid governed South Africa not only made it difficult to interpret the law for the benefit of certain freedoms, but also made it difficult to review the law as judicial authority to do so was limited. The constitutional court was only established by the interim constitution meaning that