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I. Introduction

The use of foreign law by South African courts is specifically sanctioned by the South African Constitution.  This concept was first introduced in the South African Interim Constitution[1] in 1993, and was retained in the 1996 Constitution,[2] which is currently in force. 

Although South African courts are said to have utilized foreign law often, information concerning the specific numbers regarding the frequency of use, extent of use, and the influence that foreign law has had on South African courts has been difficult to locate.  This report briefly describes the mandate on the use of foreign law (comparative interpretation) contained in the South African Constitution, the reasons foreign law is used by South African courts, and difficulties associated with the use of foreign law. 

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II. Comparative Interpretation

South African law authorizes its courts to consider foreign law in interpreting the Bill of Rights section of the South African Constitution.  The 1996 Constitution states:  

When interpreting the Bill of Rights, a court, tribunal or forum must: 

  • promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
  • must consider international law; and,
  • may consider foreign law.[[3]

The consideration of foreign law is permissive.  The court is required however, to consider international law.  In addition, the consideration of international or foreign law by a South African court does not make such law binding in South Africa.[4]  In State v. Makwanyane,[5] the South African Constitutional Court stated “we can derive assistance from public international law and foreign case law, but we are in no way bound to follow it.” 

The influence of foreign law may extend beyond the interpretation of the Bills of Rights provisions of the Constitution.[6]  The provision that authorizes the consideration of foreign law in interpreting the Bill of Rights also provides that “when interpreting any legislation, and when developing the common law or customary law,” one “must promote the spirit, purpose and objects of the Bill of Rights.”[7]  A strict following of this provision virtually guarantees that jurisprudence will be developed that will be used to address legal issues that are not directly germane to the Bill of Rights.  

A number of reasons have been cited to justify the authorization to consider foreign law by South African Courts.  One reason given was that South Africa was not considered to have had sufficient local precedents “to resolve jurisprudential issues precipitated by the justiceability of provisions of the Bill of Rights.”[8]  Additionally, South Africa’s recent past as an apartheid state made it especially difficult to locate domestic jurisprudence to support the interpretation of the new Constitution.[9]  The authorization was also justified by the fact that the Bill of Rights was heavily influenced by the constitutions of other countries, including those of Canada, Germany, and Namibia.[10]  For example, the concept of a two-stage process of adjudicating violations of rights was Canadian, while that of the prominence of human dignity as a fundamental right was German.[11]  It has also been argued that comparative interpretation in general was an inevitable phenomenon due to the “internationalization of human rights issues.”[12]  It has even been suggested that one reason for the authorization was political in nature, and was an attempt on the part of South Africa to seek international credibility after years of isolation by showing its commitment to international standards of human rights.[13] 

The South African Constitution leaves the decision as to the manner in which a comparative interpretation is to be conducted to the courts.  No criterion is provided instructing the court on how to select relevant foreign laws for consideration or establishing to what extent foreign laws may be used in deliberations and decisions.  With such an open-ended authority, the use of foreign law could be tricky.  Possible issues that could arise from the unfettered use of foreign law by South African Courts have been summarized as:  

[a] fixation on legal rules and concepts and a neglect of legal culture and context; considering foreign legal rules and judgments in isolation and failing to situate them within a larger legal system and tradition; using foreign law as authority for a certain standpoint rather than as a basis for comparison and a source of constitutional arguments; failing to appreciate that presuppositions and prejudices deeply embedded within our own legal culture may distort our understanding of foreign legal materials; uncritically accepting the distinction between public and private law; and restricting the sample of jurisdictions to be surveyed to those which favor a particular standpoint.[[14]

Since its establishment in 1994, the South African Constitutional Court is said to have extensively engaged in comparative interpretation.[15]  The Court made attempts to address the risks associated with the unfettered permission to engage in comparative interpretation.  For instance, in Shabalala v. The Attorney-General of Tvl[16] the court stated:  

[The mandate to consider foreign law] should be exercised with circumspection, since the resort to case law of foreign jurisdictions by persons not fully acquainted with the practice in these jurisdictions or with the concepts and techniques of foreign system entails a real risk that a foreign legal position would be misinterpreted.  It is necessary to take into account the accumulated experience of what does and does not work satisfactorily in the administration of justice in South Africa. 

The challenges faced by the court in engaging in comparative interpretation are seen in the case of Makwanyne,[17] one of the first cases adjudicated by the Constitutional Court following its establishment.  At issue was the constitutionality of capital punishment – whether it was cruel and degrading treatment.  The court in deliberating on this matter consulted a wide range of foreign laws, including the laws of Canada, Germany, Hungary, India, Tanzania, the United Kingdom, the United States and Zimbabwe.[18]  The Court attempted to define the limited role that foreign laws could play and the caution with which comparative interpretation should be approached.  It stated that although comparative “Bill of Rights” jurisprudence, in the absence of “indigenous jurisprudence,” is important and that foreign authorities are valuable to the extent that they show the arguments for and against the death penalty and how other jurisdictions have resolved the issue, foreign jurisprudence “will not necessarily offer a safe guide to the interpretation of [the Bill of Rights chapter of the South African Constitution].”[19]  The jurisdictions that were considered provided a wide range of at times conflicting solutions on the matter.  For instance, constitutions of the United States and India expressly permitted the death penalty, while the constitutions of Germany and Namibia prohibited it.[20]  With the exception of Hungary, all jurisdictions that outlawed the death penalty did so through their legislatures.[21]  Within the United States, which provided the largest number of cases,[22] the Court found a contradiction in the way in which the death penalty issue was handled.  The Court stated that United States jurisprudence has not yet solved the dilemma created by the constitutional prohibition against cruel and unusual punishment and the acceptance of capital punishment by the majority of the United States Supreme Court as constitutional.[23]  After completing its review the court found the death penalty to be incompatible with “the recognition of the dignity of and worth of the individual which underlay the [1993 Interim] Constitution.”[24]  In the absence of clear guidance on what is and is not appropriate in conducting comparative interpretation, judges may be influenced by a certain foreign law viewpoint beyond what was intended by the drafters of the South African Constitution.  

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III. Conclusion

Two methods of citing of foreign law are said to have emerged from the way in which the South African Constitutional Court has conducted comparative interpretation.  These are:  

  • When judges cite foreign law to support a certain interpretation of law (which has been called the “they also think this way abroad” approach); and
  • When foreign law informs a particular interpretation for a constitutional provision (which has been called the “considering they think this way abroad” approach).[25]

While the use of the first approach, which serves to reinforce a particular interpretation, appears reasonable, the use of the latter approach is considered inappropriate.[26]  

The shortcomings of comparative interpretation aside, however, there appears to be a general consensus in South Africa regarding the need to use foreign law in interpreting the South African Constitution.[27]  As it has elegantly been put, for courts that do not have the benefit of dipping into 200-year-old jurisprudence, abandoning comparative interpretation is not an option and that when “carefully used, [comparative interpretation] is at least informative, is often enriching, and at best can be inspiring.”[28]  

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Prepared by Hanibal Goitom
Foreign Law Specialist
March 2010  
 

[1] S. Afr. (Interim) Const. 1993, § 35(1). 

[2] S. Afr. Const. 1996, § 39(1). 

[3] S. Afr. Const. 1996, § 39(1).  The language of the mandate for the use of foreign law was slightly different in the 1993 Interim Constitution.  The 1993 Constitution provided that in interpreting the chapter on Fundamental Rights, a court “… may have regard to comparable foreign case law.”  S. Afr. (Interim) Const. 1993, § 35(1).  This, however, did not prevent courts from referring to sources outside of court cases.  Du Plessis & Corder, Understanding South Africa’s Transitional Bill of Rights 121 (Juta & Co., Ltd. 1994). 

[4] An international instrument ratified by South Africa, or one that has acquired the status of international customary law would of course be binding whether or not considered by a South African Court for purposes of comparative interpretation. 

[5] 1995 (6) BCLR 694. 

[6] George Devenish, A Commentary on the South African Bill of Rights 620 (Butterworths, 1999). 

[7] S. Afr. Const. 1996, § 39(2). 

[8] George Devenish, Constitutional Law in the Law of South Africa 1, 202 (LexisNexis Butterworths, 2d ed. 2004). 

[9] Andrea Lollini, Legal Argumentation Based on Foreign Law: An Example from Case Law of the South African Constitutional Court, 3 Utrecht L. Rev. 60, 65 (2007). 

[10] J.R. de Ville, Constitutional and Statutory Interpretation 241 (Interdoc Consultants Pty Ltd. 2000). 

[11] Sydney Kentridge, Comparative Law in Constitutional Adjudication, The South African Experience in Judicial Recourse To Foreign Law: A New Source Of Inspiration? (Basil Markesinis & Jörg Fedtke eds., UCL Press 2006). 

[12] George Devenish, supra note 6, at 620. 

[13] Andrea Lollini, supra note 9. 

[14] Henk Botha, Foreign Constitutional Law and the Courts: Reflections from South Africa (presented at the International Association of Law Schools Conference on Constitutional Law, Washington, DC, Sept. 11-14, 2009), available at http://www.ialsnet.org/meetings/constit/papers/BothaHenk%28SouthAfrica%29.pdf

[15] Andrea Lollini, supra note 9, at 65. 

[16] 1995 (12) BCLR 1593.

[17] 1995 (6) BCLR 694.

[18] The State v. Makwanyne, 1995 (6) BCLR at vi-xiii. 

[19] Id

[20] Kentridge, supra note 11, at 329-30. 

[21] Id. 

[22] The State v. Makwanyne, 1995 (6) BCLR at xii-xiii.

[23] Id. at 694. 

[24] Kentridge, supra note 11, at 331. 

[25] Lollini, supra note 9, at 66. 

[26] Id.  One example provided was a fairly recent Constitutional Court case, Laugh It Off Promotion v. South African Breweries International, 2005 (8) BCLR 743.  The Court in this case was criticized for failing to make “clear comparison” and for simply importing foreign rulings into the South African pool of interpretation without analysis regarding the relevance of the foreign cases it considered.  IdSee also Botha, supra note 14, at 5.

[27] Id.  See also The State v. Makwanyne, 1995 (6) BCLR at 686.

[28] Kentridge, supra note 11, at 333. 

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Last Updated: 09/16/2014